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REPORT 


"'""commission 


COMPENSATION  FOR  INDUSTRIAL 
ACCIDENTS. 


July  1,  1912. 


BOSTON: 

WRIGHT   &  POTTER  PRINTING  CO.,  STATE  PRINTERS, 

18  Post  Office  Square. 

1912. 


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Boston,  July  1,  1912. 
To  the  Honorable  Senate  and  House  of  Representatives. 

In  accordance  with  the  provisions  of  chapter  120  of  the  Re- 
solves of  1910,  and  chapters  66  and  110  of  the  Resolves  of  1911, 
we  have  the  honor  to  transmit  the  following  report. 


MEMBERS  OF  THE  COMMISSION. 


JAMES  A.  LOWELL,  Chairman. 
AMOS  T.  SAUNDERS,  Secretary. 
MAGNUS  W.  ALEXANDER. 
HENRY  HOWARD. 
JOSEPH  A.  PARKS. 


CARROLL  W.  DOTEN,  Chief  Investigator. 


RESOLVES. 


Chapter  120,  Resolves  of  1910. 

Resolves  to  provide  for  a  commission  to  determine  upon  a  plan 
OF  compensating  employees  for  injuries  received  in  the 
course  of  their  employment. 

Resolved,  That  the  public  good  requires  a  change  in  the  present  system 
of  determining  the  compensation  of  employees  for  injuries  sustained  in 
industrial  accidents,  and  that  the  conimonwealth  ought  to  provide  dif- 
ferent and  more  suitable  relief;  and, 

Resolved,  That  the  governor,  with  the  advice  and  consent  of  the  coun- 
cil, be  authorized  to  appoint  a  commission  of  five  persons,  citizens  of 
the  commonwealth,  one  of  whom  shall  be  designated  as  chairman,  for 
the  purpose  of  investigating  the  effect  of  the  present  laws  relating  to  the 
liability  of  employers  for  injuries  received  by  employees  in  the  course 
of  their  employment.  The  commission  shall  investigate  other  laws  and 
systems  in  operation  in  other  states  and  countries,  shall  correspond  or 
confer  with  committees  and  commissions  in  other  states  considering  the 
same  subject,  and  shall  draft  an  act  for  the  compensation  of  employees 
for  industrial  accidents.  The  commission  shall  be  provided  with  suit- 
able quarters  in  the  state  house  or  elsewhere.  It  may  employ  all  neces- 
sary clerical  or  other  assistance  and  may  incur  such  reasonable  expense, 
including  travelling  expenses,  and  shall  receive  such  remuneration,  as 
may  be  approved  by  the  governor  and  council.  The  commission  shall 
report  in  print,  the  draft  of  the  act  and  a  compilation  of  the  data  and 
statistics  and  such  other  information  as  the  commission  may  be  possessed 
of  as  a  result  of  its  investigation  and  study,  on  or  before  the  second 
Wednesday  in  January  in  the  year  nineteen  hundred  and  eleven,  and 
the  powers  of  said  commission  shall  terminate  on  that  date.  The  total 
expense  to  be  incurred  under  this  resolve  shall  not  exceed  the  sum  of 
ten  thousand  dollars.  The  provisions  of  section  twenty-one  of  chapter 
three  of  the  Revised  Laws  shall  not  apply  to  the  appointments  to  be 
made  under  this  resolve.    [Approved  June  7,  1910. 

Chapter  66,  Resolves  of  1911. 
Resolve  to  extend  the  powers  of  the  commission  appointed  to 

CONSIDER    the     LIABILITY     OF     EMPLOYERS    FOR     INJURIES    RECEIVED 
BY   EMPLOYEES   IN   THE    COURSE    OF    THEIR   EMPLOYMENT. 

Resolved,  That  the  commission  which  was  appointed  under  chapter 
one  hundred  and  twenty  of  the  resolves  of  the  year  nineteen  hundred 
and  ten  to  determine  upon  a  plan  of  compensating  employees  for  in- 


juries  sustained  in  the  course  of  their  employment  is  hereby  continued, 
and  is  instructed  to  report  a  draft  of  an  act  on  or  before  May  twentieth, 
nineteen  hundred  and  eleven.  For  the  purpose  of  continuing  its  investi- 
gation and  of  collecting  and  compiling  statistical  data  of  accidents  and 
other  pertinent  information,  the  said  commission  is  continued  until 
July  first,  nineteen  hundred  and  eleven.  Every  employer  shall  hereafter, 
until  July  first,  nineteen  hundred  and  eleven,  keep  a  correct  record  of 
all  injuries,  fatal  or  otherwise,  received  by  his  employees  in  the  course 
of  their  employment.  Within  forty-eight  hours,  not  coimting  Sundays 
and  legal  holidays,  after  the  occurrence  of  an  accident  to  an  employee 
resulting  in"  personal  injury  a  report  thereof  shall  be  made  in  writing  by 
the  employer  to  the  commission  on  blanks  furnished  for  the  purpose. 
Upon  the  termination  of  the  disability  of  the  injured  employee  or,  if 
such  disability  extends  beyond  a  period  of  sixty  days,  at  the  expiration 
of  such  period,  the  employer  shall  make  a  supplemental  report  on  blanks 
furnished  by  the  commission  for  that  purpose. 

The  said  reports  shall  state  the  name  and  nature  of  the  business  of 
the  employer,  the  location  of  his  establishment,  the  name,  age,  sex  and 
occupation  of  the  injured  employee,  the  date  and  hour  of  the  accident, 
the  nature  and  cause  of  the  injury,  and  such  other  information  as  may 
be  required  by  the  commission.  The  total  additional  expense  to  be  in- 
curred under  this  resolve  shall  not  exceed  the  sum  of  two  thousand  dol- 
lars.   [Approved  April  24,  1911. 

Chapteb  110,  Resolves  of  1911. 

Resolve  to  extend  the  powebs  of  the  commission  appointed  to 
consider  the  liability  of  employers  for  injuries  received 
by  employees  in  the  course  of  their  employment. 
Resolved,  That  the  commission  which  was  appointed  under  chapter 
one  hundred  and  twenty  of  the  resolves  of  the  year  nineteen  hundred 
and  ten  to  determine  upon  a  plan  of  compensating  employees  for  in- 
juries sustained  in  the  course  of  their  employment  is  hereby  continued 
until  the  first  day  of  July,  nineteen  hundred  and  twelve.  The  commis- 
sion shall  continue  its  studies  and  investigation,  and  shall  collect  and 
compile  statistical  data  of  accidents  to  employees,  and  other  pertinent 
information,  and  shall  report  to  the  general  court  on  or  before  May  first, 
nineteen  hundred  and  twelve,  with  drafts  of  such  bills  as  it  may  recom- 
mend for  legislation.  Every  employer  shall  hereafter,  until  July  first, 
nineteen  hundred  and  twelve,  keep  a  record  of  all  injuries,  fatal  or  other- 
wise, received  by  his  employees  in  the  course  of  their  emploj-ment;  and 
within  forty-eight  hours,  not  counting  Sundays  and  legal  holidays,  after 
the  occurrence  of  an  accident  resulting  in  personal  injury  to  an  em- 
ployee a  report  thereof  shall  be  made  in  writing  by  the  employer  to  the 
commission  on  blanks  furnished  for  the  purpose.  Upon  the  termination 
of  the  disability  of  the  injured  employee  or,  if  such  disability  extends 
beyond  a  period  of  sixty  days,  at  the  expiration  of  that  period,  the  em- 


ployer  shall  make  a  supplemental  report  on  blanks  furnished  by  the 
commission  for  the  purpose.  The  said  reports  shall  state  the  name  and 
nature  of  the  business  of  the  employer,  the  location  of  his  establishment, 
the  name,  age,  sex  and  occupation  of  the  injured  employee,  the  date  and 
hour  of  the  accident,  the  nature  and  cause  of  the  injury,  and  such  other 
information  as  may  be  required  by  the  commission.  Any  employer  who 
refuses  or  neglects  to  make  a  report  required  by  this  resolve  shall  be 
punished  by  a  fine  of  not  more  than  fifty  dollars  for  each  offence.  The 
total  additional  expense  to  be  incurred  under  this  resolve  shall  not  ex- 
ceed the  sum  of  thirteen  thousand  dollars.    [Approved  June  30,  1911. 


CONTENTS. 


I.     Work  of  the  Commission:  — 

Appointment  of  the  commission, 
Scope  of  the  work  of  the  commission, 
History  of  the  movement  in  favor  of  a  new  law, 
Preliminary  work  of  the  commission, 
Investigations  undertaken  by  the  commission. 
Conferences  with  other  commissions, 
Hearings,         ...... 

A  tentative  compensation  act. 
Preliminary  report  of  the  commission. 
Proceedings  in  the  Legislature, 
Continuation  of  the  work  of  the  commission, 
Bills  reported,  ..... 

Action  by  the  Legislature, 
Work  of  the  commission  subsequent  to  June  30,  1911, 
Amendments  reported, 
Legislative  action,    . 
Co-operation  of  the  commission  with  committees  of 
lature,  ...... 

Other  activities  of  the  commission,     . 
Public  addresses,      ..... 

II.     The  Massachusetts  Law, 

III.  Commentary  on  the  Massachusetts  Law, 

IV.  Brief  Description  of  Foreign  Laws:  — 

Great  Britain, 

Italy,      . 

Germany, 

Norway, 

Alberta, 

Austria, 

Belgium, 

British  Columbia, 

Cape  Colony, 

Denmark, 

Finland, 

France,  . 

Greece,  . 

Hungary, 

Luxenburg, 

Netherlands, 

New  South  Wales, 

New  Zealand, 

Quebec, 

Queensland,    . 

Russia, 

South  Australia, 

Spain,     . 

Sweden, 

Transvaal, 

Western  Australia, 


the 


Legis- 


12 


V.     Brief  Description  op  the  Laws  in  the  United  States  :  — 
Arizona, 
California, 
Illinois,  . 
Kansas, 
Maryland, 
Massachusetts 
Michigan, 
Nevada, 

New  Hampshire, 
New  Jersey, 
New  York, 
Ohio,      . 
Rhode  Island, 
Washington, 
Wisconsin, 
Federal  Law, 

Proposed  Federal  Compensation  Act, 
VI.     Consideration  op  the  Constitutionality  op  a  Compulsory  Law 

FOR  Massachusetts,   ....... 

VII.     Statistics  of  Accidents  in   Massachusetts,   May   1,   1911, 

April  30,  1912 


78 
79 
80 
81 
82 
83 
84 
85 
86 
86 


90 
91 
93 
93 

95 

109 


APPENDICES. 

A.  Acts  op  1909,  Chapter  514,  Sections  136-140 153 

B.  Statistics  from  the  Preliminary  Report  of  the  Commission,     .  155 

C.  Opinion  of  the  Justices  of  the  Massachusetts  Supreme  Judi- 

cial Court,       ..........  161 

D.  Full  Text  op  Compensation  Acts  in  the  United  States,    .  .  164 

E.  Report  Blanks  and  Instructions .  318 


13 


REPORT  OF  THE  MASSACHUSETTS  COMMISSION  ON 
COMPENSATION  FOR  INDUSTRIAL  ACCIDENTS. 


I.     WORK  OF  THE  COMMISSION. 
Appointment  of  the  Commission. 

The  Massachusetts  Commission  on  Compensation  for  In- 
dustrial Accidents  was  estabHshed  by  chapter  120  of  the  Re- 
solves of  1910,  which  was  approved  June  7,  1910.  His  Excel- 
lency the  Governor,  Eben  S.  Draper,  on  the  8th  of  June,  1910, 
appointed  as  members  of  the, commission  the  following:  James 
A.  Lowell  of  Newton,  chairman;  Amos  T.  Saunders  of  Clinton; 
Magnus  W.  Alexander  of  Lynn;  Henry  Howard  of  Brookline; 
and  Joseph  A.  Parks  of  Fall  River.  The  commission  completed 
its  organization  by  the  election  of  Amos  T.  Saunders  as  secre- 
tary, and  the  appointment  of  Carroll  W.  Doten  as  chief  investi- 
gator. 

Two  members  of  the  commission  are  lawyers,  two  are  employ- 
ers and  one  is  a  representative  of  the  employees'  point  of  view. 
Three  members  had  served  several  terms  in  the  Legislature, 
and  two  of  these  were,  at  the  time  of  their  appointment,  mem- 
bers of  the  House.  All  of  the  members  had  given  considerable 
thought  to  the  subject  before  their  appointment  and  were  keenly 
interested  in  the  matter  and  in  sympathy  with  the  purposes  set 
forth  in  the  resolve. 

Scope  of  the  Work  of  the  Commission. 
The  commission  was  limited  by  the  terms  of  the  resolve  to 
certain  definite  lines.  It  was  not  within  the  scope  of  its  func- 
tions to  gather  statistics  to  show  that  the  existing  method  of 
determining  the  compensation  of  employees  for  injuries  sustained 
in  the  course  of  their  employment  was  inadequate  and  unde- 
sirable, for  the  Legislature  had  gone  on  record  to  that  effect  in 
providing  for  the  commission.     The  commission,  therefore,  ac- 


14 

cepted  it  as  the  public  policy  of  the  Commonwealth  "to  provide 
different  and  more  suitable  relief"  in  such  cases,  and  assumed 
that  its  duty  was  primarily  to  select  the  best  method  for  carrying 
out  this  purpose  and  to  draft  the  necessary  legislation  for  making 
that  method  effective. 

History  of  the  Movement  in  Favor  of  a  New  Law, 

It  should  be  noted  that  this  action  by  the  General  Court  was 
not  the  result  of  a  hasty  decision  based  upon  a  sudden  impulse. 
It  was,  in  fact,  the  logical  outcome  of  a  long-continued  and 
increasing  demand  for  the  modification  or  abandonment  of  the 
common-law  remedies  as  applied  to  the  relationship  of  employers 
and  injured  employees. 

The  first  step  toward  a  better  system  of  dealing  with  industrial 
accidents  was  taken  in  1887,  when  the  Massachusetts  employers' 
liability  law,^  (the  first  in  the  United  States)  was  enacted.  This 
law  afforded  some  'relief  and  remedied  some  of  the  defects  in  the 
operation  of  the  common  law,  particularly  in  the  matter  of  the 
fellow-servant  doctrine.  It  soon  became  apparent  that  this  law 
not  only  failed  to  do  full  justice  to  the  employees,  but  greatly 
increased  litigation,  with  all  the  attendant  evils  of  economic 
waste,  pauperism,  and  class  antagonism. 

No  great  public  interest  was  manifested  in  the  subject,  how- 
ever, until  after  the  passage  of  the  first  compensation  act  in 
England  in  1897,  though  some  information  regarding  the  German 
social  insurance  system  came  to  the  attention  of  the  people  of 
the  State  from  time  to  time.  In  1903,  a  commission,  of  which 
the  late  Carroll  D.  Wright  was  chairman,  was  appointed  to  in- 
vestigate the  relations  of  employers  and  employees.  As  a  result 
of  its  investigations  and  studies  during  the  summer  of  1903,  it 
presented  as  a  part  of  its  final  report  to  the  Legislature  of  1904 
the  draft  of  a  compensation  act^  patterned  after  that  of  England. 

This  act  failed  to  pass,  primarily  for  two  reasons:  the  question 
was  a  new  one  in  this  country  and  public  opinion  in  favor  of  it 
had  not  been  aroused  to  a  sufficient  extent  to  support  it;  and, 
as  no  other  State  had  taken  or  seemed  likely  in  the  near  future 
to  take  a  similar  step,  there  was  a  well-grounded  fear  among 

'  Chapter  270  of  the  Acts  of  1887. 

'  See  Report  of  Committee  on  Relations  between  Employer  and  Employee,  January  13, 1901, 
pp.  47-55. 


15 

employers  that  the  added  burden  imposed  upon  the  industries 
of  the  State  would  seriously  handicap  them  in  competition  with 
those  of  other  sections  of  the  country. 

The  report  of  the  commission  and  the  effort  to  pass  the  pro- 
posed act,  however,  stirred  up  sufficient  interest  in  the  matter 
to  cause  a  similar  measure  to  be  introduced  at  the  next  session 
of  the  Legislature.  The  matter  came  up  each  year  thereafter, 
but  the  opposition  was  too  strong  to  be  overcome.  In  1907  a 
Joint  Special  Committee  on  Labor,  consisting  of  three  Senate 
members  and  eight  House  members,  was  appointed  to  sit  during 
the  recess  of  the  Legislature,  to  consider  this  question  among 
others,  and  to  report  its  recommendations  to  the  General  Court 
at  the  opening  of  the  session  of  1908.  This  committee  held 
several  public  hearings  during  the  summer  of  1907,  and  made 
its  final  report^  on  January  24,  1908.  One  of  the  measures  sub- 
mitted to  this  committee  was  House  No.  402  (1907),  which  was 
identical  with  the  bill  recommended  by  the  commission  of  1903. 

The  committee  was  unable  to  reach  an  agreement  on  this 
question.  The  majority  (six  members)  of  the  committee  were 
opposed  to  a  general  compulsory  compensation  act,  and  also 
to  any  change  in  the  employers'  liability  law.  They  favored  a 
voluntary  law  which  should  permit  employers  to  enter  into  con- 
tracts with  their  employees  to  substitute  a  plan  of  compensation 
for  their  legal  liability  under  existing  laws,  and  framed  an  act 
embodying  this  principle. 

The  minority  (five  members)  of  the  committee  favored  a 
compulsory  compensation  act  and  presented  the  draft  of  such 
an  act  as  part  of  their  report.  This  was  the  same  bill  that  had 
been  before  the  General  Court  every  session  since  1904.  Four 
members  of  the  minority  recommended  further  that  the  employ- 
ers' liability  law  be  strengthened.  To  accomplish  this  purpose 
the  draft  of  an  act  was  incorporated  in  their  report,  which  pro- 
vided that  employees  who  suffered  accidental  injury  should  have 
the  same  rights  at  law  as  persons  not  employed. 

The  majority  of  the  committee  argued  that,  while  it  was  very 
desirable  that  the  waste  of  litigation  should  be  avoided  in  some 
way,  and  that  the  injured  employee  should  receive  more  adequate 
and  speedy  relief,  existing  laws  imposed  all  the  burden  on  em- 

'  House  No.  1190  (1908). 


.16 

ployers  which  they  could  with  justice  be  required  to  bear,  and 
that  so  long  as  other  States  had  not  adopted  similar  laws  the 
industries  of  the  State  could  not  hold  their  own  in  interstate 
competition  if  the  cost  of  compensation  were  added  to  the  burdens 
already  imposed  upon  them. 

The  Legislature  enacted  the  voluntary  law  reported  by  the 
majority  of  the  commission.  In  the  session  of  1909  this  act  was 
amended  so  as  to  allow  employees  as  well  as  employers  to  take 
the  initiative  in  submitting  to  the  State  Board  of  Conciliation 
and  Arbitration  plans  for  voluntary  or  contractual  compen- 
sation.^ 

These  laws  have  often  been  referred  to  as  the  first  compensa- 
tion acts  adopted  in  the  United  States.  They  were  not  com- 
pensation acts  in  the  accepted  sense  of  the  term.  The  limit  of 
one  year  placed  upon  the  duration  of  contracts  rendered  it  un- 
desirable for  employers  to  formulate  plans  and  to  incur  the  trouble 
and  expense  necessary  to  operate  under  them.  As  a  matter  of 
fact,  no  one  has  ever  taken  advantage  of  these  acts. 

There  was  a  growing  sentiment  in  favor  of  compensation,  but 
until  1910  every  attempt  to  pass  an  adequate  law  had  failed. 
In  the  session  of  1910,  by  reason  of  increased  public  interest 
and  by  the  encouragement  which  came  from  the  practically  world- 
wide adoption  of  similar  laws  outside  of  the  United  States,  it 
seemed  likely  that  a  law  would  be  enacted. 

In  the  mean  time,  other  States  had  taken  the  matter  up.  New 
York  had  passed  two  laws,  one  compulsory  and  the  other  vol- 
untary, Maryland  and  Montana  had  adopted  the  compensation 
principle  in  limited  fields  of  industry,  and  several  other  States 
had  appointed  commissions  to  investigate  and  report  appropri- 
ate legislation.  The  United  States  Bureau  of  Labor  had  made 
careful  studies  of  foreign  systems  and  reports  upon  them,  and 
had  in  progress  an  exhaustive  compilation  of  data  upon  the 
character  and  results  of  the  chief  systems  abroad. 

The  National  Civic  Federation,  the  American  Association  for 
Labor  Legislation,  the  American  Federation  of  Labor,  and  other 
educational  and  civic  organizations  were  actively  engaged  in 
promoting  a  better  understanding  of  the  need  of  a  change  in  the 
old  laws  and  in  devising  new  methods.  ^y 

1  See  Appendix  A . 


17 

In  view  of  all  these  facts,  it  seemed  desirable  for  Massachu- 
setts to  secure  the  advantage  which  would  flow  from  co-operation 
with  such  other  States  and  private  agencies  in  perfecting  the 
draft  of  an  act.  The  result  was  the  appointment  of  this  commis- 
sion in  June,  1910. 

Preliminary  Work  of  the  Commission. 

Immediately  upon  its  appointment  the  commission  began  a 
careful  study  of  the  whole  subject.  The  literature  was  found 
to  be  extensive,  and  for  the  most  part  in  favor  of  the  abandon- 
ment of  the  old  laws  based  upon  negligence  or  fault.  As  soon  as 
practicable  a  plan  of  work  was  mapped  out  and  preliminary  in- 
vestigations were  started. 

As  set  forth  in  its  preliminary  report,^  submitted  to  the  Gen- 
eral Court,  January  11, 1911,  the  commission  made  a  careful  canvass 
of  the  field,  to  ascertain  what  statistical  data  were  available  in 
the  various  State  departments  and  commissions  before  under- 
taking new  lines  of  investigation  on  its  own  account.  It  soon 
became  apparent  that  no  figures  were  available  that  would  be 
of  much  use  to  the  commission  in  determining  the  important 
question  of  costs  under  a  compensation  act.  For  this  purpose, 
ordinary  accident  statistics,  which  distinguished  only  between 
fatal  and  nonfatal  injuries,  with  possibly  a  division  of  the  latter 
into  "slight"  and  "serious,"  are  of  little  value.  It  is  necessary 
to  know  whether  the  persons  killed  left  dependents  or  not,  and, 
in  case  there  were  dependents,  whether  they  were  partially  or 
totally  dependent  for  support  upon  the  deceased  at  the  time 
of  the  accident.  It  is  even  more  important  to  know  in  the  case 
of  nonfatal  accidents  whether  the  injury  resulted  in  complete 
or  partial  loss  of  earning  capacity,  and  the  length  of  such  dis- 
ability. The  reports  made  to  the  Secretary  of  the  Common- 
wealth cover  only  fatal  accidents,  and  contain  no  information  in 
regard  to  dependents.  The  reports  received  by  the  Board  of 
Railroad  Commissioners  and  the  JNIassachusetts  District  Police, 
covering  accidents  on  railroads,  street  railways,  and  factories, 
workshops,  etc.,  while  covering  nonfatal  as  well  as  fatal  injuries, 
do  not  supply  the  detailed  information  required  for  the  computa- 
tion of  costs. 

'  See  House  No.  300  (1911). 


18 

An  attempt  was  made  to  secure  statistics  from  the  insurance 
companies  doing  employers'  liability  business  in  the  State,  but 
here  again  the  results  were  of  no  value  for  this  investigation. 
These  companies  had  thousands  of  accident  reports  in  their 
files,  but  they  contained  no  information  in  regard  to  length  of 
disability,  the  chief  concern  of  the  companies  being  to  ascertain 
legal  liability. 

It  was  possible  for  the  commission  to  secure  foreign  statistics, 
but  it  was  not  deemed  desirable  to  base  estimates  of  cost  on  these 
figures,  because  of  the  widely  different  conditions  of  industry 
and  character  of  the  laboring  populations.  These  statistics  were 
carefully  studied  by  the  commission  and  have  afforded  valuable 
suggestions  as  to  methods  of  collection  and  compilation.  They 
also  furnish  a  very  satisfactory  means  of  checking  the  results 
of  similar  investigations  by  the  commission. 

Investigations  Undertaken  by  the  Commission. 

As  soon  as  it  became  apparent  that  existing  records  contained 
no  data  that  could  be  utilized  in  determining  costs,  independent 
investigations  were  undertaken  bj^  the  commission.  By  personal 
solicitation  on  the  part  of  a  member  of  the  commission  120 
employers  agreed  to  report  all  accidents  occurring  in  their  es- 
tablishments during  a  period  of  ten  weeks,  from  September  12  to 
November  21,  1910.  From  this  source  reports  of  2,849  accidents 
were  received  and  tabulated,^  but  the  period  was  so  short  and  the 
time  intervening  between  the  date  of  the  accidents  and  the  closing 
of  the  records  for  final  tabulation  was  so  brief  that  the  length  of 
disability,  except  in  the  less  serious  cases,  could  not  be  ascertained. 
As  the  commission  was  required  to  file  its  report  in  print  on  Jan- 
uary 11, 1911,  the  work  of  tabulation  and  the  time  required  by  the 
printer  made  it  impossible  to  hold  these  records  open  after 
December  1. 

One  conclusion  that  could  be  safely  drawn  from  these  figures 
was  that  if  a  waiting  period  of  two  weeks  after  the  accident  were 
to  intervene  before  compensation  began,  only  a  small  percentage 
of  all  accidents  would  remain  to  be  compensated.  The  actual 
per  cent,  derived  from  the  data  was  11.  Subsequent  investi- 
gations have   shown  that  this  is  too  small,  and  that  probably 

'  See  Table  I.,  Appendix  B. 


19 

from  15  to  20  per  cent,  of  all  accidents,  sufficiently  severe  to 
cause  any  loss  of  time  or  to  require  the  services  of  a  physician, 
result  in  some  disability  beyond  the  two  weeks'  limit.  Doubtless 
this  discrepancy  was  largely  due  to  the  desire  on  the  part  of  the 
employers  to  co-operate  to  the  fullest  extent  possible  by  report- 
ing every  accident,  no  matter  how  trivial. 

In  another  line  of  investigation  the  commission  obtained  sta- 
tistics which  afforded  a  satisfactory  idea  of  the  cost  to  employers 
under  the  old  system.  Twelve  hundred  employers  were  asked 
to  furnish  a  statement  of  the  cost  to  them,  during  the  year  1909, 
of  liability  insurance,  voluntary  aid,  and  other  expenses  on  account 
of  accidents  to  employees.  The  replies  of  734  employers  which 
were  complete  and  in  sufficient  detail  were  tabulated.^  These 
734  individuals  or  firms  employed  198,936  hands  and  had  an 
aggregate  pay  roll  of  $114,034,803.  The  average  cost  per  $100 
of  pay  roll  was  found  to  be  42  cents.  It  is  safe  to  assume  that 
this  fairly  represents  the  experience  of  employers  in  all  manu- 
facturing industries  in  Massachusetts,  because  the  numbers 
involved  are  sufficiently  large  to  be  taken  as  typical  of  the  whole- 
In  confirmation  of  this  assumption  it  is  significant  that  the  average 
cost  was  found  to  be  37.5  cents  in  New  York,  where  a  similar 
investigation^  was  made. 

Conferences  with  Other  Commissions. 
In  accordance  with  the  instructions  of  the  Legislature,  the 
commission  entered  into  communication  with  other  State 
commissions  and  private  agencies  which  had  been  or  were  study- 
ing the  same  questions.  It  also  took  part  in  several  conferences 
of  commissions.  From  these  sources  many  helpful  suggestions 
were  received  and  much  fruitless  labor  was  avoided.  The  most 
important  and  valuable  of  these  conferences  was  one  called  by 
this  commission,  which  met  at  Chicago,  November  10  to  12,  1910. 
Besides  this  commission,  the  United  States  Employers'  Liability 
Commission  and  the  following  State  commissions  were  repre- 
sented at  the  conference:  Illinois,  Minnesota,  Montana,  New 
Jersey,  New  York,  Ohio,  and  Wisconsin.     Several  members  of  a 

>  See  Table  II.,  Appendix  B. 

»  See  First  Report,  New  York  Commission,  March  19,  1910,  pp.  222-258.  This  investigation 
covered  353  firms,  employing  131,684  hands  and  having  an  aggregate  pay  roll  of  $70,589,182. 


20 

special  committee,  representing  the  Conference  of  Commis- 
sioners on  Uniform  State  Laws;  the  United  States  Commissioner 
of  Labor;  and  a  special  delegate  from  Connecticut  were  also  in 
attendance.  Mr.  Lowell  was  temporary  chairman  and  Mr. 
Saunders  was  permanent  secretary  of  the  conference.  A  sten- 
ographic report  of  the  proceedings  of  this  conference  and  the 
draft  of  two  acts  based  upon  the  conclusions  reached  by  the 
delegates  were  published  by  the  secretary  and  constitute  a  book  ^ 
of  362  pages.  The  results  of  this  conference  have  done  much 
to  influence  the  character  of  legislation  in  the  several  States 
that  have  enacted  compensation  laws  since  that  time. 

Hearings. 

The  commission  held  fourteen  public  hearings  in  Boston,  Fall 
River,  Lowell,  New  Bedford,  Pittsfield,  Springfield,  and  Worcester 
between  September  29  and  December  29,  1910.  These  hearings 
were  widely  advertised  and  many  notices  were  sent  out  in  advance 
to  individuals  and  organizations.  Not  much  in  the  way  of  definite 
information  was  derived  from  these  hearings,  but  they  enabled 
the  commission  to  test  the  sentiment  of  both  employers  and 
employees  in  all  sections  of  the  State.  It  was  found  that  there 
was  apparently  no  desire  on  the  part  of  any  one  to  prevent  the 
adoption  of  a  more  enlightened  and  equitable  method  of  dealing 
with  the  victims  of  industrial  accidents.  It  was  apparent  that 
the  seven  years  which  had  intervened  since  the  investigation  and 
report  of  the  commission  of  1903  had  served  to  remove  most 
of  the  objections  that  were  raised  against  the  passage  of  a  com- 
pensation act  in  1904.  Apparently  the  Legislature  had  correctly 
represented  public  sentiment  in  declaring  the  need  of  a  new 
system. 

A  Tentative  Compensation  Act. 

On  December  17  the  commission  issued  a  tentative  synopsis 
and  draft  of  a  proposed  act,  and  held  hearings  upon  it  at  the 
State  House,  December  28,  and  at  the  City  Hall  in  Worcester,  De- 
cember 29,  1910.  Considerable  opposition  immediately  appeared, 
and  many  letters  protesting  against  various  features  of  the  ten- 
tative bill  were  received.    These  came  from  both  employers  and 

'  Proceedings  of  Conference  of  Commissions  on  Compensation  for  Industrial  Accidents.  Pub- 
lished by  Amos  T.  Saunders,  Clinton,  Mass. 


21 

employees,  though,  of  course,  the  grounds  of  objection  were 
quite  different.  In  view  of  these  objections,  and  for  other  reasons 
which  are  fully  set  forth  in  its  preliminary  report,  the  commission 
decided  not  to  submit  a  bill  at  the  opening  of  the  legislative  ses- 
sion of  1911. 

Preliminary  Report  of  the  Commission.^ 
On  January  11,  1911,  the  commission  submitted  a  preliminary 
report,  in  which  it  gave  a  brief  account  of  its  activities  during 
the  preceding  six  months.  This  report  contained  the  statistical 
data  that  had  been  gathered,  and  a  brief  description  of  some 
typical  foreign  laws  and  of  such  laws  as  had  been  enacted  at  that 
time  in  other  States.  The  commission  called  particular  attention 
to  the  difficulties  it  had  encountered  in  drafting  a  bill,  and  asked 
for  at  least  two  months  more  time  for  this  purpose.  It  also 
recommended  that  an  entire  year  be  allowed  for  further  study 
and  investigation. 

Proceedings  in  the  Legislature. 

The  preliminary  report  of  the  commission  was  referred  to  the 
committee  on  the  joint  judiciary,  which  held  several  largely 
attended  hearings  on  the  matter.  A  resolve  was  reported 
granting  the  commission  an  extension  of  two  months'  time,  but 
final  action^  was  not  taken  upon  it  until  April  24,  1911.  This 
resolve  called  for  the  report  of  a  bill  on  or  before  May  20,  and 
instructed  the  commission  to  continue  its  investigations  and 
required  employers  to  report  all  accidents  until  July  1,  1911. 

In  the  mean  time  the  commission  had  been  obliged  to  suspend 
its  activities  and  to  discharge  its  office  force.  The  members  of 
the  commission,  however,  gave  such  advice  and  assistance  as 
they  could  to  the  various  legislative  committees  having  the  matter 
in  charge,  and  responded  to  frequent  calls  to  make  addresses 
before  employers'  associations,  labor  organizations,  and  commer- 
cial bodies  in  different  parts  of  the  State. 

'  See  House  No.  300  (1911). 

»  See  chapter  66  of  the  Resolves  of  1911. 


22 


Continuation  of  the  Work  of  the  Commission. 

Immediately  upon  the  passage  of  this  resolve  the  commission 
came  together  again  and  proceeded  to  carry  out  the  instructions 
of  the  Legislature.  An  office  force  was  recruited  and  put  to 
work  on  the  collection  of  statistics  of  accidents.  The  attention 
of  employers  was  called  to  the  requirement  of  reporting  all  ac- 
cidents through  press  notices,  and  circular  letters  and  schedules 
were  sent  out  to  over  40,000  employers  in  various  lines  of  busi- 
ness. The  response  to  these  requests  was  very  gratifying  and, 
although  no  penalty  was  imposed  for  failure  to  report,  the  re- 
turns were  fairly  complete  from  the  start. 

A  very  difficult  task  had  been  imposed  upon  the  commission. 
It  was  required  to  report  a  bill  within  twenty-six  days  when  it 
had  asked  for  at  least  two  months.  One  member  of  the  commis- 
sion was  absent  and  two  members  were  in  the  Legislature  at  the 
busiest  period  of  the  session. 

Bills  Reported. 
The   commission,    on   May   20,    1911,    submitted   three   acts, 
which  were  described  as  follows  in  the  report  ^  accompanying 
them :  — 

The  act  submitted  by  Messrs.  Saunders  and  Parks  provides  for  vol- 
untary mutual  insurance  of  employees  by  employers,  and  repeals  certain 
existing  defenses. 

The  act  submitted  by  Mr.  Lowell  provides  for  compulsory  compensa- 
tion paid  to  employees  by  employers. 

The  act  submitted  by  Mr.  Alexander  provides  for  universal  com- 
pulsory mutual  insurance  of  employees,  supported  by  contributions  by 
both  employers  and  employees. 

Action  by  the  Legislature. 
These  bills  were  immediately  referred  to  the  committee  on  the 
joint  judiciary,  which,  after  holding  several  largely  attended 
hearings  on  them,  reported  the  bill  submitted  by  Messrs.  Saunders 
and  Parks.  The  bill  ^  passed  the  House  without  amendment. 
In  the  Senate,  however,  an  amendment  ^  was  adopted,  granting 
to  all  liability  insurance  companies  the -same  privileges  as  the 

>  See  House  No.  1925  (19n).  «  See  House  No.  2154  (1911). 

>  See  section  3  of  Part  V,  chapter  751  of  the  Acts  of  1911. 


23 

Massachusetts  Employees  Insurance  Association  in  the  matter 
of  insuring  the  benefits  set  forth  in  the  act. 

While  the  bill  was  pending  in  the  Senate  the  question  of  its 
constitutionality  was  submitted  to  the  justices  of  the  Supreme 
Judicial  Court  for  an  opinion;  On  July  24,  1911,  an  opinion^ 
was  rendered  by  the  justices,  sustaining  the  constitutionality  of 
the  act.  The  bill  as  amended  was  enacted  and  was  approved 
by  the  Governor  July  26,  1911. 

Meanwhile,  on  June  30,  a  resolve  ^  was  passed  extending  the 
life  of  the  commission  until  July  1,  1912.  This  resolve  instructed 
the  commission  to  continue  its  studies  and  investigations,  and 
required  all  employers  to  report  accidents  until  July  1,  1912,  on 
blanks  furnished  by  the  commission.  In  order  to  insure  com- 
plete and  prompt  compliance  with  this  requirement,  employers 
who  failed  to  make  satisfactory  returns  were  to  be  subjected  to  a 
fine  of  not  more  than  $50  for  each  offense. 

Work  of  the  Commission  Subsequent  to  June  30,  1911. 

Under  the  terms  of  this  resolve  the  commission  was  further 
instructed  to  report  such  amendments  or  changes  in  the  compen- 
sation act  as  seemed  to  it  desirable  on  or  before  May  1,  1912, 
Pursuant  to  these  instructions,  new  schedules  were  sent  out  to 
employers  and  the  work  of  collecting  the  statistics  of  accidents 
begun  on  May  1  was  continued  without  interruption.  Most  of 
the  employers  of  the  State  took  up,  in  a  spirit  of  hearty  co-opera- 
tion, the  rather  burdensome  task  of  making  these  reports.  Several 
complaints,  however,  were  entered  against  delinquent  employers, 
but  it  was  not  found  necessary  in  any  instance  to  insist  upon 
prosecution  to  secure  the  returns  desired. 

The  editing,  filing,  and  tabulating  of  these  accident  reports  has 
been  an  important  part  of  the  work  of  the  commission  during 
the  past  year  and  the  results  are  to  be  found  in  a  subsequent 
portion  of  this  report.  • 

Amendments  Reported, 
The  commission  gave  very  careful  consideration  to  the  matter 
of  perfecting  the  compensation  law  as  enacted.     It  received  numer- 
ous suggestions  from  persons  who  were  interested  in  certain  de- 

'  See  Appendix  C.  '  See  chapter  110,  Resolves  of  1911. 


26 

invitation  of  the  federal  commission.  Mr.  Lowell  spoke  at  this 
hearing  and  submitted  a  brief  ^  favoring  a  compulsory  compensa- 
tion act. 

Meeting  of  American  Association  for  Labor  Legislation,  Chicago, 
111.,  September  14-15,  1911.  At  this  meeting  representatives  from 
the  various  State  commissions  were  present  and  the  matter  of 
uniform  schedules  and  forms  of  tables  were  discussed.  A  special 
committee  was  appointed  to  draw  up  such  forms  as  were  deemed 
necessary  and  submit  a  report  at  the  annual  meeting  of  the  asso- 
ciation in  December. 

Conference  of  State  Commissions,  Chicago,  111.,  October  14, 1911. 
This  conference  was  the  outgrowth  of  the  conference  called  by 
this  commission  in  November  of  the  previous  year.  At  this  meet- 
ing it  was  voted  to  effect  a  permanent  organization.  Mr.  Lowell 
was  made  permanent  chairman  and  Mr.  Saunders  was  a  member 
of  the  executive  committee.  The  organization  is  called  "The 
American  Conference  of  Commissions  on  Compensation  for  In- 
dustrial Accidents,"  and  is  intended  to  include  in  its  membership 
those  who  are  connected  with  temporary  commissions  concerned 
with  drafting  and  promoting  legislation,  and  the  members  of 
permanent  administrative  bodies  like  the  Massachusetts  Indus- 
trial Accident  Board. 

Hearings  before  the  Federal  commission,  Chicago,  111.,  October 
16,  1911.  These  were  a  continuation  of  the  Washington  hearings, 
and  were  devoted  to  questions  of  fact  rather  than  to  the  legal 
and  constitutional  aspects  of  the  matter. 

Conference  on  uniform  reporting  of  industrial  accidents  under 
the  auspices  of  the  American  Association  for  Labor  Legislation 
and  the  American  Statistical  Association,  Washington,  D.  C, 
December  29,  1911. 

Adjourned  meeting  of  the  American  Conference  of  Commissions 
on  Compensation  for  Industrial  Accidents,  Washington,  D.  C, 
March  4,  1912. 

Meeting  of  the  National  Civic  Federation,  Washington,  D.  C, 
March  5,  1912. 

'  See  62d  Congress,  1st  session.  Senate  Document  No.  90,  Vol.  1,  pp.  182-190,  and  Vol.  2,  pp. 
389-403.  . 


27 


Public  Addresses. 

The  commission  felt  that  in  addition  to  the  duties  imposed  upon 
it  by  the  terms  of  the  resolves  under  which  it  was  conducting  its 
studies  and  investigations  it  could  perform  a  most  useful  service 
by  giving  as  wide  publicity  as  possible  to  the  new  law.  The  mem- 
bers had  frequently  responded  to  calls,  during  the  first  year  of 
its  existence,  to  address  various  organizations  on  the  subject  of 
employers'  liability  and  workmen's  compensation.  The  com- 
mission determined  to  continue  and  extend  this  work. 

Between  October  25,  1911,  and  June  29,  1912,  the  members  and 
chief  investigator  of  the  commission  attended  meetings  and  ad- 
dressed 87  organizations  in  the  following  cities  and  towns:  Abing- 
ton,  Attleborough,  Ayer,  Beverly,  Billerica,  Boston,  Bridgewater, 
Brockton,  Cambridge,  Charlestown,  Chicopee  Centre,  Chicopee 
Falls,  Clinton,  Everett,  Fall  River,  Fitchburg,  Gloucester,  Holyoke, 
Lawrence,  Leominster,  Lowell,  Lynn,  Maiden,  Mansfield,  Marl- 
borough, Medfield,  Milford,  New  Bedford,  Newburyport,  Olney- 
ville.  Palmer,  Plymouth,  Quincy,  Randolph,  Somerville,  Spring- 
field, Taunton,  Turners  Falls,  Waltham,  and  Worcester. 


26 

invitation  of  the  federal  commission.  Mr.  Lowell  spoke  at  this 
hearing  and  submitted  a  brief  ^  favoring  a  compulsory  compensa- 
tion act. 

Meeting  of  American  Association  for  Labor  Legislation,  Chicago, 
111.,  September  14-15,  1911.  At  this  meeting  representatives  from 
the  various  State  commissions  were  present  and  the  matter  of 
uniform  schedules  and  forms  of  tables  were  discussed.  A  special 
committee  was  appointed  to  draw  up  such  forms  as  were  deemed 
necessary  and  submit  a  report  at  the  annual  meeting  of  the  asso- 
ciation in  December. 

Conference  of  State  Commissions,  Chicago,  111.,  October  14, 1911. 
This  conference  was  the  outgrowth  of  the  conference  called  by 
this  commission  in  November  of  the  previous  year.  At  this  meet- 
ing it  was  voted  to  effect  a  permanent  organization.  Mr.  Lowell 
was  made  permanent  chairman  and  Mr.  Saunders  was  a  member 
of  the  executive  committee.  The  organization  is  called  "The 
American  Conference  of  Commissions  on  Compensation  for  In- 
dustrial Accidents,"  and  is  intended  to  include  in  its  membership 
those  who  are  connected  with  temporary  commissions  concerned 
with  drafting  and  promoting  legislation,  and  the  members  of 
permanent  administrative  bodies  like  the  Massachusetts  Indus- 
trial Accident  Board. 

Hearings  before  the  Federal  commission,  Chicago,  III.,  October 
16,  1911.  These  were  a  continuation  of  the  Washington  hearings, 
and  were  devoted  to  questions  of  fact  rather  than  to  the  legal 
and  constitutional  aspects  of  the  matter. 

Conference  on  uniform  reporting  of  industrial  accidents  under 
the  auspices  of  the  American  Association  for  Labor  Legislation 
and  the  American  Statistical  Association,  Washington,  D.  C, 
December  29,  1911. 

Adjourned  meeting  of  the  American  Conference  of  Commissions 
on  Compensation  for  Industrial  Accidents,  Washington,  D.  C, 
March  4,  1912. 

Meeting  of  the  National  Civic  Federation,  Washington,  D.  C, 
March  5,  1912. 

'  See  62d  Congress,  1st  session,  Senate  Document  No.  90,  Vol.  1,  pp.  182-190,  and  Vol.  2,  pp. 

389-403,  . 


27 


Public  Addresses. 

The  commission  felt  that  in  addition  to  the  duties  imposed  upon 
it  by  the  terms  of  the  resolves  under  which  it  was  conducting  its 
studies  and  investigations  it  could  perform  a  most  useful  service 
by  giving  as  wide  publicity  as  possible  to  the  new  law.  The  mem- 
bers had  frequently  responded  to  calls,  during  the  first  year  of 
its  existence,  to  address  various  organizations  on  the  subject  of 
employers'  liability  and  workmen's  compensation.  The  com- 
mission determined  to  continue  and  extend  this  work. 

Between  October  25, 1911,  and  June  29,  1912,  the  members  and 
chief  investigator  of  the  commission  attended  meetings  and  ad- 
dressed 87  organizations  in  the  following  cities  and  towns:  Abing- 
ton,  Attleborough,  Ayer,  Beverly,  Billerica,  Boston,  Bridgewater, 
Brockton,  Cambridge,  Charlestown,  Chicopee  Centre,  Chicopee 
Falls,  Clinton,  Everett,  Fall  River,  Fitchburg,  Gloucester,  Holyoke, 
Lawrence,  Leominster,  Lowell,  Lynn,  Maiden,  Mansfield,  Marl- 
borough, Medfield,  Milford,  New  Bedford,  Newburyport,  Olney- 
ville.  Palmer,  Plymouth,  Quincy,  Randolph,  Somerville,  Spring- 
field, Taunton,  Turners  Falls,  Waltham,  and  Worcester. 


28 


II.    THE  MASSACHUSETTS  LAW. 

Chapter  751  of  the  Acts    of    1911,  as  amended  by  Chapters  172  and  571 
OF  THE  Acts  of  1912. 

An  Act  relative  to  Payments  to  Employees  for  Personal 
Injuries  Received  in  the  Course  of  their  Employment 
and  to  the  prevention  of  such  injuries. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  in  Gen- 
eral Court  assembled,  and  by  the  authority  of  the  same,  as 
follows: 

Part  I. 

MODIFICATION  OF  REMEDIES. 

Section  1.  In  an  action  to  recover  damages  for  personal 
injury  sustained  by  an  employee  in  the  course  of  his  employment, 
or  for  death  resulting  from  personal  injury  so  sustained,  it  shall 
not  be  a  defence: 

1.  That  the  employee  was  negligent; 

2.  That  the  injury  was  caused  by  the  negligence  of  a  fellow 
employee; 

3.  That  the  employee  had  assumed  the  risk  of  the  injury. 
Section  2.     The  provisions  of  section  one  shall  not  apply  to 

actions  to  recover  damages  for  personal  injuries  sustained  by 
domestic  servants  and  farm  laborers. 

Section  3.  The  provisions  of  section  one  shall  not  apply  to 
actions  to  recover  damages  for  personal  injuries  sustained  by 
employees  of  a  subscriber. 

Section  4.  The  provisions  of  sections  one  hundred  and  twenty- 
seven  to  one  hundred  and  thirty-five,  inclusive,  and  of  one  hun- 
dred and  forty-one  to  one  hundred  and  forty-three,  inclusive,  of 
chapter  five  hundred  and  fourteen  of  the  acts  of  the  year  nine- 
teen hundred  and  nine,  and  of  any  acts  in  amendment  thereof, 
shall  not  apply  to  employees  of  a  subscriber  while  this  act  is  in 
effect. 

Section  5.  An  employee  of  a  subscriber  shall  be  held  to  have 
waived  his  right  of  action  at  common  law  to  recover  damages 
for  personal  injuries  if  he  shall  not  have  given  his  employer,  at 


29 

the  time  of  his  contract  of  hire,  notice  in  writing  that  he  claimed 
such  right,  or  if  the  contract  of  hire  was  made  before  the  em- 
ployer became  a  subscriber,  if  the  employee  shall  not  have  given 
the  said  notice  within  thirty  days  of  notice  of  such  subscription. 
An  employee  who  has  given  notice  to  his  employer  that  he  claimed 
his  right  of  action  at  common  law  may  waive  such  claim  by  a 
notice  in  writing  which  shall  take  effect  five  days  after  it  is  de- 
livered to  the  employer  or  his  agent. 

Part  II. 
payments. 

Section  1.  If  an  employee  who  has  not  given  notice  of  his 
claim  of  common  law  rights  of  action,  as  provided  in  Part  I, 
section  five,  or  who  has  given  such  notice  and  has  waived  the 
same,  receives  a  personal  injury  arising  out  of  and  in  the  course 
of  his  employment,  he  shall  be  paid  compensation  by  the  asso- 
ciation, as  hereinafter  provided,  if  his  employer  is  a  subscriber 
at  the  time  of  the  injur3^- 

Section  2.  If  the  employee  is  injured  by  reason  of  his  serious 
and  wilful  misconduct,  he  shall  not  receive  compensation. 

Section  3.  If  the  employee  is  injured  by  reason  of  the  serious 
and  wilful  misconduct  of  a  subscriber  or  of  any  person  regularly 
entrusted  with  and  exercising  the  powers  of  superintendence,  the 
amounts  of  compensation  hereinafter  provided  shall  be  doubled. 
In  such  case  the  subscriber  shall  repay  to  the  association  the  extra 
compensation  paid  to  the  employee.  If  a  claim  is  made  under 
this  section  the  subscriber  shall  be  allowed  to  appear  and  defend 
against  such  claim  only. 

Section  4.  No  compensation  shall  be  paid  under  this  act  for 
any  injury  which  does  not  incapacitate  the  employee  for  a  period 
of  at  least  two  wrecks  from  earning  full  wages,  but  if  incapacity 
extends  beyond  the  period  of  two  weeks,  compensation  shall 
begin  on  the  fifteenth  day  after  the  injury. 

Section  5.  During  the  first  two  weeks  after  the  injury,  the 
association  shall  furnish  reasonable  medical  and  hospital  serv- 
ices, and  medicines  when  they  are  needed. 

Section  6.  If  death  results  from  the  injury,  the  association 
shall  pay  the  dependents  of  the  employee,  wholly  dependent 
upon  his  earnings  for  support  at  the  time  of  the  injury,  a  weekly 


30 

payment  equal  to  one  half  his  average  weekly  wages,  but  not 
more  than  ten  dollars  nor  less  than  four  dollars  a  week,  for  a 
period  of  three  hundred  weeks  from  the  date  of  the  injury.  If 
the  employee  leaves  dependents  only  partly  dependent  upon  his 
earnings  for  support  at  the  time  of  his  injury,  the  association 
shall  pay  such  dependents  a  weekly  compensation  equal  to  the 
same  proportion  of  the  weekly  payments  for  the  benefit  of  per- 
sons wholly  dependent  as  the  amount  contributed  by  the  em- 
ployee to  such  partial  dependents  bears  to  the  annual  earnings 
of  the  deceased  at  the  time  of  his  injury.  When  weekly  pay- 
ments have  been  made  to  an  injured  employee  before  his  death, 
the  compensation  to  dependents  shall  begin  from  the  date  of  the 
last  of  such  payments,  but  shall  not  continue  more  than  three 
hundred  weeks  from  the  date  of  the  injury. 

Section  7.  The  following  persons  shall  be  conclusively  pre- 
sumed to  be  wholly  dependent  for  support  upon  a  deceased  em- 
ployee:— 

(a)  A  wife  upon  a  husband  with  whom  she  lives  at  the  time  of 
his  death. 

(6)  A  husband  upon  a  wife  with  whom  he  lives  at  the  time  of 
her  death. 

(c)  A  child  or  children  under  the  age  of  eighteen  years  (or  over 
said  age,  but  physically  or  mentally  incapacitated  from  earning) 
upon  the  parent  with  whom  he  is  or  they  are  living  at  the  time  of 
the  death  of  such  parent,  there  being  no  surviving  dependent 
parent.  In  case  there  is  more  than  one  child  thus  dependent,  the 
death  benefit  shall  be  divided  equally  among  them. 

In  all  other  cases  questions  of  dependency,  in  whole  or  in  part, 
shall  be  determined  in  accordance  with  the  fact,  as  the  fact  may 
be  at  the  time, of  the  injury;  and  in  such  other  cases,  if  there  is 
more  than  one  person  wholly  dependent,  the  death  benefit  shall 
be  divided  equally  among  them,  and  persons  partly  dependent, 
if  any,  shall  receive  no  part  thereof;  if  there  is  no  one  wholly 
dependent  and  more  than  one  person  partly  dependent,  the  death 
benefit  shall  be  divided  among  them  according  to  the  relative 
extent  of  their  dependency. 

Section  8.  If  the  employee  leaves  no  dependents,  the  asso- 
ciation shall  pay  the  reasonable  expense  of  his  last  sickness  and 
burial,  which  shall  not  exceed  two  hundred  dollars. 


31 

Section  9.  While  the  incapacity  for  work  resulting  from  the 
injury  is  total,  the  association  shall  pay  the  injured  employee  a 
weekly  compensation  equal  to  one  half  his  average  weekly  wages, 
but  not  more  than  ten  dollars  nor  less  than  four  dollars  a  week; 
and  in  no  case  shall  the  period  covered  by  such  compensation  be 
greater  than  five  hundred  weeks,  nor  the  amount  more  than  three 
thousand  dollars. 

Section  10.  While  the  incapacity  for  work  resulting  from  the 
injury  is  partial,  the  association  shall  pay  the  injured  employee  a 
weekly  compensation  equal  to  one  half  the  difference  between  his 
average  weekly  wages  before  the  injury  and  the  average  weekly 
wages  which  he  is  able  to  earn  thereafter,  but  not  more  than  ten 
dollars  a  week;  and  in  no  case  shall  the  period  covered  by  such 
compensation  be  greater  than  three  hundred  weeks  from  the  date 
of  the  injury. 

Section  11.  In  case  of  the  following  specified  injuries  the 
amounts  hereinafter  named  shall  be  paid  in  addition  to  all  other 
compensation : 

(a)  For  the  loss  by  severance  of  both  hands  at  or  above  the 
wrist,  or  both  feet  at  or  above  the  ankle,  or  the  loss  of  one  hand 
and  one  foot,  or  the  reduction  to  one  tenth  of  normal  vision  in 
both  eyes  with  glasses,  one  half  of  the  average  weekly  wages  of 
the  injured  person,  but  not  more  than  ten  dollars  nor  less  than 
four  dollars  a  week,  for  a  period  of  one  hundred  weeks. 

(b)  For  the  loss  by  severance  of  either  hand  at  or  above  the 
wrist,  or  either  foot  at  or  above  the  ankle,  or  the  reduction  to 
one  tenth  of  normal  vision  in  either  eye  with  glasses,  one  half  the 
average  weekly  wages  of  the  injured  person,  but  not  more  than 
ten  dollars  nor  less  than  four  dollars  a  week,  for  a  period  of  fifty 
weeks. 

(c)  For  the  loss  by  severance  at  or  above  the  second  joint  of 
two  or  more  fingers,  including  thumbs,  or  toes,  one  half  the  average 
weekly  wages  of  the  injured  person,  but  not  more  than  ten  dollars 
nor  less  than  four  dollars  a  week,  for  a  period  of  twenty-five  weeks. 

(d)  For  the  loss  by  severance  of  at  least  one  phalange  of  a 
finger,  thumb,  or  toe,  one  half  the  average  weekly  wages  of  the 
injured  person,  but  not  more  than  ten  dollars  nor  less  than  four 
dollars  a  week,  for  a  period  of  twelve  weeks. 

Section  12.     No  savings  or  insurance  of  the  injured  employee, 


32 

independent  of  this  act,  shall  be  taken  into  consideration  in  deter- 
mining the  compensation  to  be  paid  hereunder,  nor  shall  benefits 
derived  from  any  other  source  than  the  association  be  considered 
in  fixing  the  compensation  under  this  act. 

Section  13.  The  compensation  payable  unde"  this  act  in  case 
of  the  death  of  the  injured  employee  shall  be  paid  to  his  legal  rep- 
resentative; or,  if  he  has  no  legal  representative  to  his  dependents; 
or,  if  he  leaves  no  dependents,  to  the  persons  to  whom  payment 
of  the  expenses  for  the  last  sickness  and  burial  are  due.  If  the 
payment  is  made  to  the  legal  representative  of  the  deceased 
employee,  it  shall  be  paid  by  him  to  the  dependents  or  other 
persons  entitled  thereto  under  this  act. 

Section  14.  If  an  injured  employee  is  mentally  incompetent 
or  is  a  minor  at  the  time  when  any  right  or  privilege  accrues  to 
him  under  this  act,  his  guardian  or  next  friend  may  in  his  behalf 
claim  and  exercise  such  right  or  privilege. 

Section  15.  No  proceedings  for  compensation  for  an  injury 
under  this  act  shall  be  maintained  unless  a  notice  of  the  injury 
shall  have  been  given  to  the  association  or  subscriber  as  soon  as 
practicable  after  the  happening  thereof,  and  unless  the  claim  for 
compensation  with  respect  to  such  injury  shall  have  been  made 
within  six  months  after  the  occurrence  of  the  same;  or,  in  case  of 
the  death  of  the  employee,  or  in  the  event  of  his  physical  or 
mental  incapacity,  within  -six  months  after  death  or  the  removal 
of  such  physical  or  mental  incapacity. 

Section  16.  The  said  notice  shall  be  in  writing,  and  shall  state 
in  ordinary  language  the  time,  place  and  cause  of  the  injury,  and 
shall  be  signed  by  the  person  injured,  or  by  a  person  in  his  behalf, 
or,  in  the  event  of  his  death,  by  his  legal  representative  or  by  a 
person  in  his  behalf,  or  by  a  person  to  whom  payments  may  be 
due  under  this  act  or  by  a  person  in  his  behalf.  Any  form  of 
written  communication  signed  by  any  person  who  may  give  the 
notice  as  above  provided,  which  contains  the  information  that  the 
person  has  been  so  injured,  giving  the  time,  place  and  cause  of 
the  injury,  shall  be  considered  a  sufficient  notice. 

Section  17.  The  notice  shall  be  served  upon  the  association, 
or  an  officer  or  agent  thereof,  or  upon  the  subscriber,  or  upon  one 
subscriber,  if  there  are  more  subscribers  than  one,  or  upon  any 
officer  or  agent  of  a  corporation  if  the  subscriber  is  a  corporation, 


33 

by  delivering  the  same  to  the  person  on  whom  it  is  to  be  served, 
or  leaving  it  at  his  residence  or  place  of  business,  or  by  sending 
it  by  registered  mail  addressed  to  the  person  or  corporation  on 
whom  it  is  to  be  served,  at  his  last  known  residence  or  place  of 
business. 

Section  18.  A  notice  given  under  the  provisions  of  this  act 
shall  not  be  held  invalid  or  insufficient  by  reason  of  any  inaccu- 
racy in  stating  the  time,  place  or  cause  of  the  injury,  unless  it  is 
shown  that  it  was  the  intention  to  mislead  and  the  association 
was  in  fact  misled  thereby.  Want  of  notice  shall  not  be  a  bar 
to  proceedings  under  this  act,  if  it  be  shown  that  the  association, 
subscriber,  or  agent  had  knowledge  of  the  injury. 

Section  19.  After  an  employee  has  received  an  injury,  and 
from  time  to  time  thereafter  during  the  continuance  of  his  disa- 
bility he  shall,  if  so  requested  by  the  association  or  subscriber,  sub- 
mit himself  to  an  examination  by  a  physician  or  surgeon  authorized 
to  practise  medicine  under  the  laws  of  the  commonwealth,  furnished 
and  paid  for  by  the  association  or  subscriber.  The  employee  shall 
have  the  right  to  have  a  physician  provided  and  paid  for  by  him- 
self present  at  the  examination.  If  he  refuses  to  submit  himself 
for  the  examination,  or  in  any  way  obstructs  the  same,  his  right 
to  compensation  shall  be  suspended,  and  his  compensation  during 
the  period  of  suspension  may  be  forfeited. 

Section  20.  No  agreement  by  an  employee  to  waive  his  rights 
to  compensation  under  this  act  shall  be  valid. 

Section  21.  No  payment  under  this  act  shall  be  assignable 
or  subject  to  attachment,  or  be  liable  in  any  way  for  any  debts. 

Section  22.  Whenever  any  weekly  payment  has  been  con- 
tinued for  not  less  than  six  months,  the  liability  therefor  may  in 
unusual  cases  be  redeemed  by  the  payment  of  a  lump  sum  by 
agreement  of  the  parties,  subject  to  the  approval  of  the  industrial 
accident  board. 

Section  23.  The  claim  for  compensation  shall  be  in  writing, 
and  shall  state  the  time,  place,  cause  and  nature  of  the  injury;  it 
shall  be  signed  by  the  person  injured  or  by  a  person  in  his  behalf, 
or,  in  the  event  of  his  death,  by  his  legal  representative  or  by  a 
person  in  his  behalf,  or  by  a  person  to  whom  payments  may  be 
due  under  this  act  or  by  a  person  in  his  behalf,  and  shall  be  filed 
with  the  industrial  accident  board.    The  failure  to  make  a  claim 


34 

within  the  period  prescribed  by  section  fifteen  shall  not  be  a  bar 
to  the  maintenance  of  proceedings  under  this  act  if  it  is  found  that 
it  was  occasioned  by  mistake  or  other  reasonable  cause. 

Part  III. 

PROCEDURE. 

Section  1.  There  shall  be  an  industrial  accident  board  con- 
sisting of  five  members,  to  be  appointed  by  the  governor,  by  and 
with  the  advice  and  consent  of  the  council,  one  of  whom  shall  be 
designated  by  the  governor  as  chairman.  The  term  of  ofiice  of 
members  of  this  board  shall  be  five  years,  except  that  when  first 
constituted  one  member  shall  be  appointed  for  one  year,  one  for 
two  years,  one  for  three  years,  one  for  four  years,  and  one  for  five 
years.  Thereafter  one  member  shall  be  appointed  every  year 
for  the  full  term  of  five  years. 

Section  2.  The  salaries  and  expenses  of  the  board  shall  be 
paid  by  the  commonwealth.  The  salary  of  the  chairman  shall 
be  five  thousand  dollars  a  year,  and  the  salary  of  the  other  mem- 
bers shall  be  forty-five  hundred  dollars  a  year  each.  The  board 
may  appoint  a  secretary  at  a  salary  of  not  more  than  three  thou- 
sand dollars  a  year,  and  may  remove  him.  It  shall  also  be  al- 
lowed an  annual  sum,  not  exceeding  ten  thousand  dollars,  for 
clerical  service,  and  travelling  and  other  necessary  expenses.  The 
board  shall  be  provided  with  an  ofiice  in  the  state  house  or  in 
some  other  suitable  building  in  the  city  of  BostoUj  in  which  its 
records  shall  be  kept. 

Section  3.  The  board  may  make  rules  not  inconsistent  with 
this  act  for  carrying  out  the  provisions  of  the  act.  Process  and 
procedure  under  this  act  shall  be  as  summary  as  reasonably  may 
be.  The  board  or  any  member  thereof  shall  have  the  power  to 
subpoena  witnesses,  administer  oaths,  and  to  examine  such  parts 
of  the  books  and  records  of  the  parties  to  a  proceeding  as  relate 
to  questions  in  dispute.  The  fees  for  attending  as  a  witness 
before  the  industrial  accident  board  shall  be  one  dollar  and  fifty 
cents  a  day,  for  attending  before  an  arbitration  committee  fifty 
cents  a  day;  in  both  cases  five  cents  a  mile  for  travel  out  and 
home. 

The  superior  court  shall  have  power  to  enforce  by  proper  pro- 


35 

ceedings  the  provisions  of  this  section  relating  to  the  attendance 
and  testimony  of  witnesses  and  the  examination  of  books  and 
records. 

Section  4.  If  the  association  and  the  injured  employee  reach 
an  agreement  in  regard  to  compensation  under  this  act,  a  memo- 
randum of  the  agreement  shall  be  filed  with  the  industrial  acci- 
dent board  and,  if  approved  by  it,  thereupon  the  memorandum 
shall  for  all  purposes  be  enforcible  under  the  provisions  of  Part 
III,  section  eleven.  Such  agreements  shall  be  approved  by  said 
board  only  when  the  terms  conform  to  the  provisions  of  this  act. 

Section  5.  If  the  association  and  the  injured  employee  fail  to 
reach  an  agreement  in  regard  to  compensation  under  this  act, 
either  party  may  notify  the  industrial  accident  board  who  shall 
thereupon  call  for  the  formation  of  a  committee  of  arbitration. 
The  committee  of  arbitration  shall  consist  of  three  members,  one 
of  whom  shall  be  a  member  of  the  industrial  accident  board,  and 
shall  act  as  chairman.  The  other  two  members  shall  be  named, 
respectively,  by  the  two  parties.  If  the  subscriber  has  appeared 
under  the  provisions  of  Part  II,  section  three,  the  member  named 
by  the  association  shall  be  subject  to  his  approval.  If  a  vacancy 
occurs  it  shall  be  filled  by  the  part}'  whose  representative  is  un- 
able to  act. 

The  arbitrators  appointed  by  the  parties  shall  be  sworn  by  the 
chairman  as  follows:    I  do  solemnly  swear  that  I  will 

faithfully  perform  my  duty  as  arbitrator  and  will  not  be  influenced 
in  my  decision  by  any  feeling  of  friendship  or  partiality  toward 
either  party.     So  help  me  God. 

Section  6.  It  shall  be  the  duty  of  the  industrial  accident 
board,  upon  notification  that  the  parties  have  failed  to  reach  an 
agreement,  to  request  both  parties  to  appoint  their  respective 
representatives  on  the  committee  of  arbitration.  The  board 
shall  designate  one  of  its  members  to  act  as  chairman,  and,  if 
either  party  does  not  appoint  its  member  on  this  committee 
within  seven  days  after  notification,  as  above  provided,  or  after 
a  vacancy  has  occurred,  the  board  or  any  member  thereof  shall 
fill  the  vacancy  and  notify  the  parties  to  that  effect. 

Section  7.  The  committee  on  arbitration  shall  make  such 
inquiries  and  investigations  as  it  shall  deem  necessary.  The 
hearings  of  the  committee  shall  be  held  in  the  city  or  town  where 


36 

the  injury  occurred,  and  the  decision  of  the  committee,  together 
with  a  statement  of  the  evidence  submitted  before  it,  its  findings 
of  fact,  ruhngs  of  law  and  any  other  matters  pertinent  to  questions 
arising  before  it  shall  be  filed  with  the  industrial  accident  board. 
Unless  a  claim  for  a  review  is  filed  by  either  party  within  seven 
days,  the  decision  shall  be  enforcible  under  the  provisions  of  Part 
III,  section  eleven. 

Section  8.  The  industrial  accident  board  or  any  member 
thereof  may  appoint  a  duly  qualified  impartial  physician  to  ex- 
amine the  injured  employee  and  to  report.  The  fee  for  this  serv- 
ice shall  be  five  dollars  and  travelling  expenses,  but  the  board  may 
allow  additional  reasonable  amounts  in  extraordinary  cases. 

Section  9.  The  arbitrators  named  by  or  for  the  parties  to  the 
dispute  shall  each  receive  five  dollars  as  a  fee  for  his  services,  but 
the  industrial  accident  board  or  any  member  thereof  may  allow 
additional  reasonable  amounts  in  extraordinary  cases.  The  fees 
shall  be  paid  by  the  association,  which  shall  deduct  an  amount 
equal  to  one  third  of  the  sum  from  any  compensation  found  due 
the  employee. 

Section  10.  If  a  claim  for  a  review  is  filed,  as  provided  in 
Part  III,  section  seven,  the  board  shall  hear  the  parties  and  may 
hear  evidence  in  regard  to  any  or  all  matters  pertinent  thereto 
and  may  revise  the  decision  of  the  committee  in  whole  or  in  part, 
or  may  refer  the  matter  back  to  the  committee  for  further  findings 
of  fact,  and  shall  file  its  decision  with  the  jrecords  of  the  proceed- 
ings and  notify  the  parties  thereof.  No  party  shall  as  a  matter 
of  right  be  entitled  to  a  second  hearing  upon  any  question  of 
fact. 

Section  11.  Any  party  in  interest  may  present  certified  copies 
of  an  order  or  decision  of  the  board,  a  decision  of  an  arbitration 
committee  from  w^hich  no  claim  for  review  has  been  filed  within 
the  time  allowed  therefor,  or  a  memorandum  of  agreement  ap- 
proved by  the  board,  and  all  papers  in  connection  therewith,  to  the 
superior  court  for  the  county  in  which  the  injury  occurred  or  for 
the  county  of  Suffolk,  whereupon  said  court  shall  render  a  decree 
in  accordance  therewith  and  notify  the  parties.  Such  decree 
shall  have  the  same  effect  and  all  proceedings  in  relation  thereto 
shall  thereafter  be  the  same  as  though  rendered  in  a  suit  duly 
heard  and  determined  by  said  court,  except  that  there  shall  be 


37 

no  appeal  therefrom  upon  questions  of  fact,  or  where  the  decree 
is  based  upon  a  decision  of  an  arbitration  committee  or  a  memo- 
randum of  agreement,  and  that  there  shall  be  no  appeal  from 
a  decree  based  upon  an  order  or  decision  of  the  board  which  has 
not  been  presented  to  the  court  within  ten  days  after  the  notice 
of  the  filing  thereof  by  the  board.  Upon  the  presentation  to  it 
of  a  certified  copy  of  a  decision  of  the  industrial  accident  board 
ending,  diminishing  or  increasing  a  weekly  payment  under  the 
provisions  of  Part  III,  section  twelve,  the  court  shall  revoke  or 
modify  the  decree  to  conform  to  such  decision. 

Section  12.  Any  weekly  payment  under  this  act  may  be  re- 
viewed by  the  industrial  accident  board  at  the  request  of  the  asso- 
ciation or  of  the  employee;  and  on  such  review  it  may  be  ended, 
diminished  or  increased,  subject  to  the  maximum  and  minimum 
amounts  above  provided,  if  the  board  finds  that  the  condition  of 
the  employee  warrants  such  action. 

Section  13.  Fees  of  attorneys  and  physicians  for  services 
under  this  act  shall  be  subject  to  the  approval  of  the  industrial 
accident  board. 

Section  14.  If  the  committee  of  arbitration,  industrial  acci- 
dent board,  or  any  court  before  whom  any  proceedings  are  brought 
under  this  act  determines  that  such  proceedings  have  been  brought, 
prosecuted,  or  defended  without  reasonable  ground,  it  shall  assess 
the  whole  cost  of  the  proceedings  upon  the  party  who  has  so 
brought,  prosecuted  or  defended  them. 

Section  15.  Where  the  injury  for  which  compensation  is  pay- 
able under  this  act  was  caused  under  circumstances  creating  a 
legal  liability  in  some  person  other  than  the  subscriber  to  pay 
damages  in  respect  thereof,  the  employee  may  at  his  option  pro- 
ceed either  at  law  against  that  person  to  recover  damages,  or 
against  the  association  for  compensation  under  this  act,  but  not 
against  both,  and  if  compensation  be  paid  under  this  act,  the 
association  may  enforce  in  the  name  of  the  employee,  or  in  its 
own  name  and  for  its  own  benefit,  the  liability  of  such  other 
person. 

Section  16.  All  questions  arising  under  this  act,  if  not  settled 
by  agreement  by  the  parties  interested  therein,  shall,  except  as 
otherwise  herein  provided,  be  determined  by  the  industrial  acci- 
dent board.    The  decisions  of  the  industrial  accident  board  shall 


38 

for  all  purposes  be  eiiforcible  under  the  provisions  of  Part  III, 
section  eleven. 

Section  17.  If  a  subscriber  enters  into  a  contract,  written  or 
oral,  with  an  independent  contractor  to  do  such  subscriber's  work, 
or  if  such  a  contractor  enters  into  a  contract  with  a  sub-contractor 
to  do  all  or  any  part  of  the  work  comprised  in  such  contract  with 
the  subscriber,  and  the  association  would,  if  such  work  were  exe- 
cuted by  employees  immediately  employed  by  the  subscriber,  be 
liable  to  pay  compensation  under  this  act  to  those  employees,  the 
association  shall  pay  to  such  employees  any  compensation  which 
would  be  payable  to  them  under  this  act  if  the  independent  or 
sub-contractors  were  subscribers.  The  association,  however,  shall 
be  entitled  to  recover  indemnity  from  any  other  person  who  would 
have  been  liable  to  such  employees  independently  of  this  section, 
and  if  the  association  has  paid  compensation  under  the  terms  of 
this  section,  it  may  enforce  in  the  name  of  the  employee,  or  in  its 
own  name  and  for  the  benefit  of  the  association,  the  liability  of 
such  other  person.  This  section  shall  not  apply  to  any  contract 
of  an  independent  or  sub-contractor  which  is  merely  ancillary  and 
incidental  to,  and  is  no  part  of  or  process  in,  the  trade  or  business 
carried  on  by  the  subscriber,  nor  to  any  case  where  the  injury 
occurred  elsewhere  than  on,  in,  or  about  the  premises  on  which 
the  contractor  has  undertaken  to  execute  the  work  for  the  sub- 
scriber or  which  are  under  the  control  or  management  of  the 
subscriber. 

Section  18.  Every  employer  shall  hereafter  keep  a  record  of 
all  injuries,  fatal  or  otherwise,  received  by  his  employees  in  the 
course  of  their  employment.  Within  forty-eight  hours,  not 
counting  Sundays  and  legal  holidays,  after  the  occurrence  of  an 
accident  resulting  in  personal  injury  a  report  thereof  shall  be 
made  in  writing  to  the  industrial  accident  board  on  blanks  to  be 
procured  from  the  board  for  the  purpose. 

Upon  the  termination  of  the  disabihty  of  the  injured  employee 
or,  if  such  disability  extends  beyond  a  period  of  sixty  days,  at 
the  expiration  of  such  period  the  employer  shall  make  a  supple- 
mental report  on  blanks  to  be  procured  from  the  board  for  that 
purpose. 

The  said  reports  shall  contain  the  name  and  nature  of  the  busi- 
ness of  the  employer,  the  location  of  the  establishment,  the  name. 


39 

age,  sex  and  occupation  of  the  injured  employee,  and  shall  state 
the  date  and  hour  of  the  accident,  the  nature  and  cause  of  the 
injury,  and  such  other  information  as  may  be  required  by  the 
board. 

Any  employer  who  refuses  or  neglects  to  make  the  report 
required  by  this  section  shall  be  punished  by  a  fine  of  not  more 
than  fifty  dollars  for  each  offence. 

Part  IV. 

THE  MASSACHUSETTS   EMPLOYEES   INSURANCE  ASSOCIATION. 

Section  1.  The  Massachusetts  Employees  Insurance  Associa- 
tion is  hereby  created  a  body  corporate  with  the  powers  provided 
in  this  act  and  with  all  the  general  corporate  powers  incident 
thereto. 

Section  2.  The  governor  shall  appoint  a  board  of  directors  of 
the  association,  consisting  of  fifteen  members,  who  shall  serve  for 
a  term  of  one  year,  or  until  their  successors  are  elected  by  ballot 
by  the  subscribers  at  such  time  and  for  such  term  as  the  by-laws 
shall  provide. 

Section  3.     Until  the  first  meeting  of  the  subscribers  the  board 
of  directors  shall  have  and  exercise  all  the  powers  of  the  sub- 
scribers, and  may  adopt  by-laws  not  inconsistent  with  the  provi-  ■ 
sions  of  this  act,  which  shall  be  in  effect  until  amended  or  repealed 
by  the  subscribers. 

Section  4.  The  board  of  directors  shall  annually  choose  by 
ballot  a  president,  who  shall  be  a  member  of  the  board,  a  secre- 
tary, a  treasurer,  and  such  other  oflficers  as  the  by-laws  shall 
provide. 

Section  5.  Seven  or  more  of  the  directors  shall  constitute  a 
quorum  for  the  transaction  of  business. 

Vacancies  in  any  office  may  be  filled  in  such  manner  as  the 
by-laws  shall  provide. 

Section  6.  Any  employer  in  the  commonwealth  may  become 
a  subscriber. 

Section  7.  The  board  of  directors  shall,  within  thirty  days  of 
the  subscription  of  twenty-five  employers,  call  the  first  meeting  of 
the  subscribers  by  a  notice  in  writing  mailed  to  each  subscriber  at 
his  place  of  business  not  less  than  ten  days  before  the  date  fixed 
for  the  meeting. 


40 

Section  8.  In  any  meeting  of  the  subscribers  each  subscriber 
shall  be  entitled  to  one  vote,  and  if  a  subscriber  has  five  hundred 
employees  to  whom  the  association  is  bound  to  pay  compensation 
he  shall  be  entitled  to  two  votes,  and  he  shall  be  entitled  to  one 
additional  vote  for  each  additional  five  hundred  employees  to 
w^hom  the  association  is  bound  to  pay  compensation,  but  no  sub- 
scriber shall  cast,  by  his  own  right  or  by  the  right  of  proxy,  more 
than  twenty  votes. 

Section  9.  No  policy  shall  be  issued  by  the  association  until 
not  less  than  one  hundred  employers  have  subscribed,  who  have 
not  less  than  ten  thousand  employees  to  whom  the  association 
may  be  bound  to  pay  compensation. 

Section  10.  No  policy  shall  be  issued  until  a  list  of  the  sub- 
scribers, with  the  number  of  employees  of  each,  together  with 
such  other  information  as  the  insurance  commissioner  may  require, 
shall  have  been  filed  at  the  insurance  department,  nor  until  the 
president  and  secretary  of  the  association  shall  have  certified 
under  oath  that  every  subscription  in  the  list  so  filed  is  genuine 
and  made  with  an  agreement  by  every  subscriber  that  he  will  take 
the  policies  subscribed  for  by  him  within  thirty  days  of  the  grant- 
ing of  a  license  to  the  association  by  the  insurance  commissioner 
to  issue  policies. 

Section  11.  If  the  number  of  subscribers  falls  below^  one  hun- 
dred, or  the  number  of  employees  to  whom  the  association  may 
be  bound  to  pay  compensation  falls  below  ten  thousand,  no  further 
policies  shall  be  issued  until  other  employers  have  subscribed  who, 
together  with  existing  subscribers,  amount  to  not  less  than  one 
hundred  who  have  not  less  than  ten  thousand  employees,  said 
subscriptions  to  be  subject  to  the  provisions  contained  in  the 
preceding  section. 

Section  12.  Upon  the  filing  of  the  certificate  provided  for  in 
the  two  preceding  sections  the  insurance  commissioner  shall  make 
such  investigation  as  he  may  deem  proper  and,  if  his  findings  war- 
rant it,  grant  a  license  to  the  association  to  issue  policies. 

Section  13.  The  board  of  directors  shall  distribute  the  sub- 
scribers into  groups  in  accordance  with  the  nature  of  the  business 
and  the  degree  of  the  risk  of  injury. 

Subscribers  within  each  group  shall  annually  pay  in  cash,  or 
notes  absolutely  payable,  such  premiums  as  may  be  required  to 


41 

pay  the  compensation  herein  provided  for  the  injuries  which  may 
occur  in  that  year. 

Section  14.  The  association  may  in  its  by-laws  and  poHcies 
fix  the  contingent  mutual  liability  of  the  subscribers  for  the  pay- 
ment of  losses  and  expenses  not  provided  for  by  its  cash  funds;  but 
such  contingent  liability  of  a  subscriber  shall  not  be  less  than  an 
amount  equal  to  and  in  addition  to  the  cash  premium. 

Section  15.  If  the  association  is  not  possessed  of  cash  funds 
above  its  unearned  premiums  sufficient  for  the  payment  of  incurred 
losses  and  expenses,  it  shall  make  an  assessment  for  the  amount 
needed  to  pay  such  losses  and  expenses  upon  the  subscribers  liable 
to  assessment  therefor  in  proportion  to  their  several  liability. 

Every  subscriber  shall  pay  his  proportional  part  of  any  assess- 
ments which  may  be  laid  by  the  association,  in  accordance  with 
law  and  his  contract,  on  account  of  injuries  sustained  and  ex- 
penses incurred  while  he  is  a  subscriber. 

Section  16.  The  board  of  directors  may,  from  time  to  time,  by 
vote  fix  and  determine  the  amount  to  be  paid  as  a  dividend  upon 
policies  expiring  during  each  year  after  retaining  sufficient  sums 
to  pay  all  the  compensation  which  may  be  payable  on  account  of 
injuries  sustained  and  expenses  incurred. 

All  premiums,  assessments,  and  dividends  shall  be  fixed  by  and 
for  groups  as  heretofore  provided  in  accordance  with  the  experi- 
ence of  each  group,  but  all  the  funds  of  the  association  and  the 
contingent  liability  of  all  the  subscribers  shall  be  available  for  the 
payment  of  any  claim  against  the  association. 

Section  17.  Any  proposed  premium,  assessment,  dividend  or 
distribution  of  subscribers  shall  be  filed  with  the  insurance  depart- 
ment and  shall  not  take  effect  until  approved  by  the  insurance 
commissioner  after  such  investigation  as  he  may  deem  necessary. 

Section  18.  The  board  of  directors  shall  make  and  enforce 
reasonable  rules  and  regulations  for  the  prevention  of  injuries  on 
the  premises  of  subscribers,  and  for  this  purpose  the  inspectors  of 
the  association  shall  have  free  access  to  all  such  premises  during 
regular  working  hours. 

Any  subscriber  or  employee  aggrieved  by  any  such  rule  or 
regulation  may  petition  the  industrial  accident  board  for  a  review, 
and  it  may  affirm,  amend,  or  annul  the  rule  or  regulation. 

Section  19.     If  any  officer  of  the  association  shall  falsely  make 


42 

oath  to  any  certificate  required  to  be  filed  with  the  insurance 
commissioner,  he  shall  be  guilty  of  perjury. 

Section  20.  Every  subscriber  shall,  as  soon  as  he  secures  a 
policy,  give  notice,  in  writing  or  print,  to  all  persons  under  con- 
tract of  hire  with  him  that  he  has  provided  for  payment  to  injured 
employees  by  the  association. 

Section  21.  Every  subscriber  shall  give  notice  in  writing  or 
print  to  every  person  with  whom  he  is  about  to  enter  into  a  con- 
tract of  hire  that  he  has  provided  for  payment  to  injured  em- 
ployees by  the  association.  If  an  employer  ceases  to  be  a  sub- 
scriber he  shall,  on  or  before  the  day  on  which  his  policy  expires, 
give  notice  thereof  in  writing  or  print  to  all  persons  under  con- 
tract with  him.  In  case  of  the  renewal  of  the  policy  no  notice 
shall  be  required  under  the  provisions  of  this  act.  He  shall  file 
a  copy  of  said  notice  with  the  industrial  accident  board.  The 
notices  required  by  this  and  the  preceding  section  may  be  given 
in  the  manner  therein  provided  or  in  such  other  manner  as  may 
be  approved  by  the  industrial  accident  board. 

Section  22.  If  a  subscriber,  who  has  complied  with  all  the 
rules,  regulations  and  demands  of  the  association,  is  required  by 
any  judgment  of  a  court  of  law  to  pay  to  an  employee  any  dam- 
ages on  account  of  personal  injury  sustained  by  such  employee 
during  the  period  of  subscription,  the  association  shall  pay  to  the 
subscriber  the  full  amount  of  such  judgment  and  the  cost  assessed 
therewith,  if  the  subscriber  shall  have  given  the  association  notice 
in  writing  of  the  bringing  of  the  action  upon  w^hich  the  judgment 
was  recovered  and  an  opportunity  to  appear  and  defend  the  same. 

Section  23,  The  provisions  of  chapter  five  hundred  and  sev- 
enty-six of  the  acts  of  the  year  nineteen  hundred  and  seven  and  of 
acts*in  amendment  thereof  shall  apply  to  the  association,  so  far  as 
such  provisions  are  pertinent  and  not  in  conflict  with  the  provi- 
sions of  this  act,  except  that  the  corporate  powers  shall  not  expire 
because  of  failure  to  issue  policies  or  make  insurance. 

Section  24.  The  board  of  directors  appointed  by  the  governor 
under  the  provisions  of  Part  IV,  section  two,  may  incur  such 
expenses  in  the  performance  of  its  duties  as  shall  be  approved  by 
the  governor  and  council.  Such  expenses  shall  be  paid  from  the 
treasury  of  the  commonwealth  and  shall  not  exceed  in  amount 
the  sum  of  fifteen  thousand  dollars. 


43 


Part  V. 

MISCELLANEOUS   PROVISIONS. 

Section  1.  If  an  employee  of  a  subscriber  files  any  claim  with 
or  accepts  any  payment  from  the  association  on  account  of  per- 
sonal injury,  or  makes  any  agreement,  or  submits  any  question  to 
arbitration,  under  this  act,  such  action  shall  constitute  a  release 
to  the  subscriber  of  all  claims  or  demands  at  law,  if  any,  arising 
from  the  injury. 

Section  2.  The  following  words  and  phrases,  as  used  in  this 
act,  shall,  unless  a  different  meaning  is  plainly  required  by  the 
context,  have  the  following  meaning :  — 

"Employer"  shall  include  the  legal  representative  of  a  deceased 
employer. 

"Employee"  shall  include  every  person  in  the  service  of 
another  under  any  contract  of  hire,  express  or  implied,  oral  or 
written,  except  one  whose  employment  is  but  casual,  or  is  not  in 
the  usual  course  of  the  trade,  business,  profession  or  occupation 
of  his  employer.  Any  reference  to  an  employee  who  has  been 
injured  shall,  when  the  employee  is  dead,  also  include  his  legal 
representatives,  dependents  and  other  persons  to  whom  compen- 
sation may  be  payable. 

"Dependents"  shall  mean  members  of  the  employee's  family  or 
next  of  kin  who  were  wholly  or  partly  dependent  upon  the  earn- 
ings of  the  employee  for  support  at  the  time  of  the  injury. 

"Average  weekly  wages"  shall  mean  the  earnings  of  the 
injured  employee  during  the  period  of  twelve  calendar  months 
immediately  preceding  the  date  of  injury,  divided  by  fifty-two; 
but  if  the  injured  employee  lost  more  than  two  weeks'  time  during 
such  period  then  the  earnings  for  the  remainder  of  such  twelve 
calendar  months  shall  be  divided  by  the  number  of  weeks  remain- 
ing after  the  time  so  lost  has  been  deducted.  Where,  by  reason 
of  the  shortness  of  the  time  during  which  the  employee  has  been 
in  the  employment  of  his  employer,  or  the  nature  or  terms  of  the 
employment,  it  is  impracticable  to  compute  the  average  weekly 
wages,  as  above  defined,  regard  may  be  had  to  the  average  weekly 
amount  which,  during  the  twelve  months  previous  to  the  injury, 
was  being  earned  by  a  person  in  the  same  grade  employed  at  the 
same  work  by  the  same  employer;    or,  if  there  is  no  person  so 


44 

employed,  by  a  person  in  the  same  grade  employed  in  the  same 
class  of  employment  and  in  the  same  district. 

"Association"  shall  mean  the  Massachusetts  Employees  Insur- 
ance Association. 

"Subscriber"  shall  mean  an  employer  who  has  become  a  mem- 
ber of  the  association  by  paying  a  year's  premium  in  advance  and 
receiving  the  receipt  of  the  association  therefor,  provided  that  the 
association  holds  a  license  issued  by  th6  insurance  commissioner 
as  provided  in  Part  IV,  section  twelve. 

Section  3.  Any  liability  insurance  company  authorized  to  do 
business  within  this  commonwealth  shall  have  the  same  right  as 
the  association  to  insure  the  liability  to  pay  the  compensation  pro- 
vided for  by  Part  II  of  this  act,  and  when  such  liability  company 
issues  a  policy  conditioned  to  pay  such  compensation  the  holder 
of  such  policy  shall  be  regarded  as  a  subscriber  so  far  as  applicable 
within  the  meaning  of  this  act,  and  when  any  such  company 
insures  such  payment  of  compensation  it  shall  be  subject  to  the 
provisions  of  Parts  I,  II,  III  and  V  and  of  section  twenty-two 
of  Part  IV  of  this  act,  and  shall'file  with  the  insurance  department 
its  classifications  of  risks  and  premiums  relating  thereto  and  any 
subsequent  proposed  classifications  or  premiums,  none  of  which 
shall  take  effect  until  the  insurance  commissioner  has  approved 
the  same  as  adequate  for  the  risks  to  which  they  respectively 
apply. 

Section  4.  Sections  one  hundred  and  thirty-six  to  one  hun- 
dred and  thirty-nine,  inclusive,  of  chapter  five  hundred  and  four- 
teen of  the  acts  of  the  year  nineteen  hundred  and  nine  are  hereby 
repealed. 

Section  5.  The  provisions  of  this  act  shall  not  apply  to 
injuries  sustained  prior  to  the  taking  eft'ect  thereof. 

Section  6.  Part  IV  of  this  act  shall  take  effect  on  the  first 
day  of  January,  nineteen  hundred  and  twelve;  sections  one  to 
three,  inclusive,  of  Part  III  shall  take  effect  on  the  tenth  day  of 
May,  nineteen  hundred  and  twelve;  the  remainder  "thereof  shall 
take  effect  on  the  first  day  of  July,  nineteen  hundred  and  twelve. 


45 


Chapter  666,  Acts  of  1912. 

An  Act  relative  to  the  Insurance  of  Compensation  to 
Employees  for  Personal  Injuries  Received  in  the 
Course  of  their  Employment. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives  in  Gen- 
eral Court  assembled,  and  hy  the  authority  of  the  same,  as 
follows: 

Section  1.  The  insurance  commissioner  may  withdraw  his 
approval  of  any  premium  or  distribution  of  subscribers  given  by 
him  to  the  Massachusetts  Employees  Insurance  Association 
under  the  provisions  of  section  seventeen  of  Part  IV  of  chapter 
seven  hundred  and  fifty-one  of  the  acts  of  the  year  nineteen  hun- 
dred and  eleven,  or  of  any  premium  or  rate  under  the  provisions 
of  section  three  of  Part  V  of  said  chapter  seven  hundred  and 
fifty-one  as  amended  by  section  seventeen  of  chapter  five  hundred 
and  seventy-one  of  the  acts  of  the  year  nineteen  hundred  and 
twelve. 

Section  2.  The  notices  required  by  section  five  of  Part  I 
of  said  chapter  seven  hundred  and  fifty-one  shall  be  given  in  such 
manner  as  the  industrial  accident  board  may  approve. 

Section  3.    This  act  shall  take  effect  upon  its  passage. 

Approved  May  28,  1912. 


46 


III.    COMMENTARY  ON  THE  MASSACHUSETTS  LAW. 

The  chief  object  of  compensation  laws  is  to  provide  a  definite 
scale  of  payments  to  employees  injured  in  industry.  They  may 
be  so  framed  as  to  impose  a  direct  liability  on  the  employer  or 
to  require  the  insurance  payable  to  the  employees,  of  the  com- 
pensation prescribed  by  the  law.  Such  laws  may  be  compulsory 
or  elective. 

The  Massachusetts  law  may  be  briefly  characterized  as  an 
elective  compensation  insurance  law  giving  compensation  for  all 
injuries  arising  out  of  employment  irrespective  of  negligence  except 
those  due  to  the  serious  and  wilful  misconduct  of  the  injured  em- 
ployee. The  basic  principle  of  the  act  is  that  the  cost  of  injuries 
incidental  to  modern  industry  should  .be  treated  as  a  part  of  the 
cost  of  production.  The  act  was  framed  with  that  end  in  view. 
The  language  of  the  English  act  of  1897  was  followed  whenever 
possible  for  the  reason  that  the  words  of  that  act  have  received 
judicial  interpretation  by  the  highest  courts  of  England,  and  by 
adopting  the  same  phraseology  litigation  would  be  avoided. 

The  law  will  operate  to  prevent  injuries.  No  one  can  study 
the  history  of  this  subject  in  other  countries  without  being  im- 
pressed by  the  fact  that  the  operation  of  compensation  laws  in 
several  of  them  has  materially  reduced  the  number  of  injuries 
in  factories  and  workshops,  especially  those  resulting  from  machine 
operation. 

In  Massachusetts  this  subject  has  not  received  so  much  atten- 
tion as  in  some  foreign  countries.  But  under  the  terms  of  the 
new  law,  where  every  injury  carries  with  it  compensation,  the 
employers  will  realize  that  it  is  of  the  utmost  consequence,  in  a 
financial  as  well  as  a  humanitarian  way,  to  prevent  the  injury. 
It  is  believed  that  it  will  be  possible  to  decrease  very  largely  the 
number  of  accidents,  and  this  aspect  of  the  law  is  regarded  as  its 
most  important  part. 

Part  I. 

In  Part  I  a  modification  of  the  common  law  is  made.  The 
opinion  is  gaining  general  acceptance  that  the  doctrines  of  "  negli- 
gence of  a  fellow  servant"  and  "assumption  of  risk,"  which  were 


47 

engrafted  onto  the  old  common  law  by  more  recent  decisions  of 
the  courts,  are  not  reasonably  nor  logically  applicable  to  existing 
conditions  of  employment.  To  a  less  degree  it  has  come  to  be 
considered  that  the  doctrine  of  "contributory  negligence"  when 
rigidly  appUed  does  not  properly  meet  the  prevailing  conditions. 
Part  I,  therefore,  provides  that  these  defenses  shall  not  hereafter 
be  set  up  except  in  actions  by  farm  laborers  and  domestic  servants, 
and  except  by  employers  who  become  subscribers  under  the  com- 
pensation act  in  actions  brought  by  employees  who  do  not  accept 
the  act.  Farm  laborers  and  domestic  servants  were  excluded 
for  the  reason  that  it  was  thought  by  a  majority  of  the  commission 
that  the  conditions  of  domestic  service  and  agriculture  in  Massa- 
chusetts did  not  require  a  change  in  the  law.  Those  exceptions 
were  also  contained  in  the  employers'  liability  act  of  Massachu- 
setts. 

Employers  who  become  subscribers  under  the  compensation 
law  are  not  subject  to  the  modifications  of  the  common  law  or 
to  the  employers'  liability  act.  The  advantages  to  them  will  be 
apparent  because  of  these  provisions.  Employees  of  a  subscriber 
will  find  it  to  their  advantage  not  to  claim  their  rights  of  action 
at  common  law  inasmuch  as  the  employers'  liability  act  does  not 
apply  to  them.  Their  rights  depend  entirely  on  the  common 
law  under  which  there  is  no  cause  of  action  for  death. 

The  provisions  of  Part  I,  are  compulsory  and  apply  to  all  em- 
ployers except  in  the  three  instances  mentioned  above. 

Part  II. 

The  common  law  having  been  modified  by  Part  I,  for  the  reasons 
above  stated,  the  remainder  of  the  act  is  elective  and  applies  to 
all  employers. 

The  law  was  drawn  in  the  elective  form  because  a  majority  of 
the  commission  thought  it  unwise  for  the  Legislatiu-e  to  pass  a 
compulsory  law  at  the  time  this  act  was  recommended. 

Sections  1  and  2  provide  compensation  for  all  injuries  arising 
out  of  employment  except  where  the  injury  is  due  to  the  serious 
and  wilful  misconduct  of  the  injured  man. 

Those  sections  are  contained  in  the  English  law  and  have  given 
rise  to  much  litigation  there,  but  their  meaning  is  now  well  settled. 
The  outcome  of  the  decisions  on  both  of  these  sections  is  that  only 


48       ^ 

those  injuries  which  are  incidental  to  the  operation  of  an  industry 
are  covered  by  the  law.  An  employer  is  not  liable  in  the  case  of 
an  injury  which  is  not  caused  by  the  industry,  and  the  employee 
does  not  lose  his  compensation  by  mere  carelessness,  but  only 
by  conduct  such  that  the  injury  cannot  be  said  to  be  the  result 
of  the  operation  of  the  industry. 

It  will  thus  be  seen  that  the  English  decisions  have  emphasized 
the  true  scope  of  the  law.  Mere  carelessness  does  not  prevent 
the  injured  man  from  receiving  compensation.  Many  of  the 
injuries  arising  from  temporary  inattention  or  fatigue  due  to  over- 
strain are  recognized  as  a  necessary  concomitant  of  the  compli- 
cated operations  and  high  speed  of  modern  industry. 

Section  3  grants  double  compensation  for  injuries  occasioned 
by  the  serious  and  wilful  misconduct  of  the  employer  or  his  super- 
intendent in  the  conduct  of  the  business.  This  provision  is  not 
found  in  the  English  law,  but  if  the  decisions  on  the  meaning  of 
"serious  and  wilful  misconduct,"  under  the  section  of  the  act  of 
1897  relating  to  the  misconduct  of  employees,  are  followed,  this 
section  will  cover  the  failure  by  the  employer  or  his  superintendent 
to  comply  with  statutory  safety  regulations  so  that  it  will  operate 
to  prevent  the  breach  of  such  rules. 

The  commission  made  this  provision  for  the  reason  that  it 
thought  it  equitable  to  provide  a  double  compensation  for  the 
injuries  occasioned  by  serious  and  wilful  misconduct  of  the  em- 
ployer, as  it  had  provided  that  in  case  of  the  misconduct  of  the 
injured  employee  no  compensation  should  be  payable.  Some 
persons  have  proposed  to  allow  compensation  in  the  latter  case, 
but  it  did  not  seem  fair  to  burden  the  industry  with  the  cost  of 
injuries  which  were  not  due  to  its  operation.  The  commission 
was  in  doubt,  also,  as  to  the  validity  of  such  a  provision. 

Sections  4  and  5  provide  that  there  shall  be  no  compensation 
during  the  first  two  weeks  after  the  injury,  but  that  medical  at- 
tendance shall  be  furnished.  If  the  disability  caused  by  the  injury 
lasts  for  more  than  two  weeks  compensation  is  paid  beginning 
with  the  fifteenth  day.  Some  laws  provide  that  if  the  disability 
of  the  injured  employee  continues  for  a  certain  period  beyond  the 
time  during  which  compensation  is  otherwise  not  payable,  in  such 
case  compensation  shall  be  computed  from  the  date  of  the  injury. 
Because  such  laws  offer  a  great  inducement  to  magnify  the  con- 


49 

sequences  of  a  slight  industrial  accident  and  to  delay  the  return 
to  work  they  did  not  meet  the  approval  of  the  commission.  This 
waiting  period  was  set  at  two  weeks,  as  it  was  thought  unwise  to 
burden  industry  with  the  cost  of  many  slight  injuries.  Moreover, 
the  requirement  of  medical  attendance  will  meet  the  greatest  need 
of  the  injured  man  during  this  period,  and  was  introduced  for 
that  purpose  and  in  order  to  prevent  the  occurrence  of  serious 
results  due  to  lack  of  prompt  treatment.  The  cost  of  this  medical 
attendance  will  probably  be  found  to  be  very  considerable,  but 
the  commission  considered  the  matter  to  be  of  sufficient  impor- 
tance to  justify  it.  It  will  probably  be  found  by  experience  possi- 
ble to  decrease  the  length  of  this  period,  though  in  the  opinion 
of  the  commission  it  is  of  greater  importance  to  provide  more 
adequately  for  those  permanently  disabled  by  extending  the  period 
of  payments,  and  for  those  who  are  working  for  very  low  wages 
by  increasing  the  minimum  weekly  payments. 

The  provisions  of  sections  6  to  10,  inclusive,  relating  to  the 
amount  of  compensation,  do  not  require  extended  comment.  One 
half  wages  was  taken  as  the  rate  of  compensation  for  the  reason 
that  it  was  considered  to  be  a  fair  proportion  of  the  loss  to  be 
borne  by  the  employee.  The  persons  entitled  to  special  considera- 
tion in  laws  of  this  sort  are  those  who  are  permanently  incapaci- 
tated. Provision  has  been  made  for  giving  them  as  much  as  was 
thought  consistent  with  the  burden  which  could  reasonably  be 
placed  on  the  industry.  The  maximum  amount  recoverable  is  the 
same  for  death  and  permanent  injury,  but  in  ,the  latter  case  the 
period  of  payment  is  two  hundred  weeks  longer,  so  that  a  person 
who  is  not  receiving  the  maximum  amount  per  week  will  receive 
a  larger  compensation  than  would  his  dependents  if  he  had  died. 

It  is  provided  in  section  7  that  the  persons  who  are  usually  in 
fact  dependent  shall  be  conclusively  presumed  to  be  so.  This  was 
done  to  avoid  litigation.  It  will  not  be  found  that  this  section 
and  the  preceding  will  cause  a  heavy  charge  on  industry,  as  the 
number  of  deaths  is  not  a  large  proportion  of  the  total  number  of 
injuries. 

Section  11  grants  a  limited  additional  compensation  for  certain 
specified  injuries.  The  commission  regards  this  as  an  improve- 
ment over  the  provisions  of  many  compensation  laws  which  have 
provided  for  such  fixed  amounts  in  lieu  of  all  other  compensation. 


50 

Such  systems  will  result  unfairly,  as  the  effect  of  the  loss  of  a  limb 
on  the  capacity  to  earn  wages  differs  so  much  in  different  indus- 
tries. A  small  fixed  amount  has  been  provided  in  addition  to 
the  regular  compensation,  and  in  this  way  it  is  thought  that  the 
total  compensation  of  the  injured  man  will  be  more  likely  to  be 
proportionate  to  his  real  loss. 

The  provisions  of  section  12,  that  savings  or  insurance  of  the 
injured  employee  shall  be  disregarded  in  determining  compensa- 
tion, were  introduced  to  encourage  the  employee  in  habits  of  thrift. 

Sections  15  to  18  relate  to  notice  of  the  injury.  These  provisions 
have  purposely  been  made  very  favorable  to  the  employee. 

Section  19  provides  for  medical  examination  of  an  injured  man 
at  any  time.  This  is  necessary  in  the  interests  of  both  employer 
and  employee. 

Sections  20  and  21  were  introduced  for  the  protection  of  the 
employee;  they  provide  that  he  may  not  waive  his  right  to  com- 
pensation and  that  the  payments  under  the  act  shall  not  be  hable 
for  his  debts. 

Section  22  allows  the  Industrial  Accident  Board  in  unusual 
cases  to  approve  an  agreement  to  substitute  a  lump  sum  settle- 
ment for  weekly  payments.  This  can  be  done  only  after  six 
months.  The  section  was  drawn  in  this  form  to  emphasize  the 
idea  that  such  settlements  were  not  to  be  favored. 

Part  III. 

The  commission,  was  of  the  opinion  that  the  controversies  under 
the  act  should  not  be  dealt  with  in  the  ordinary  courts.  The 
Superior  Court  is  already  overloaded  with  litigation,  and  needs 
to  be  relieved  of  part  of  this  burden.  It  is  expected  that  the  opera- 
tion of  the  law  will  act  to  a  considerable  extent  in  this  direction. 
The  nature  of  controversies  between  employers  and  injured  em- 
ployees under  the  new  law  is  such  that  they  do  not  require  deter- 
mination in  the  courts.  The  administration  of  the  old  law  of 
negligence  by  the  courts  has,  owing  to  the  defects  in  that  law, 
subjected  the  courts  to  unjust  criticism. 

Another  reason  for  the  adoption  of  different  procedure  was  that 
the  commission  believed  that  it  was  necessary  to  have  an  admin- 
istrative board  intrusted  with  the  execution  of  the  law.  IVIore- 
over,  it  was  thought  unwise  to  allow  the  law  to  be  administered 


51 

by  the  judges  of  the  courts,  as  the  details  of  administration  would 
differ  widely  in  different  courts.  This  difficulty  has  been  experi- 
enced in  England.  The  Industrial  Accident  Board  is  designed  to 
provide  a  medium  for  the  settlement  of  controversies  which  will 
act  uniformly  throughout  the  Commonwealth. 

The  loss  arising  from  the  present  system  of  determination  of 
controversies  with  its  great  waste  of  money  in  connection  with 
litigation  will  be  materially  reduced.  •  The  difficulty  under  the 
new  law  will  not  be  so  much  in  the  determination  of  matters  of 
legal  liability  as  in  the  ascertainment  of  the  physical  incapacity 
of  the  injiu'ed  man. 

The  controversies  under  the  act  will  relate  largely  to  the  extent 
and  duration  of  the  injury.  The  successful  administration  of  the 
act  requires  the  assistance  of  skilful  physicians  and  surgeons  of 
the  highest  integrity.  This  phase  of  the  situation  has  occasioned 
difficulty  in  other  countries.  The  details  of  this  subject  must  be 
determined  by  the  Industrial  Accident  Board  as  they  arise  in 
actual  practice.  The  emphasis  will  be  laid  not  as  heretofore  on 
the  lawyer  but  on  the  doctor. 

In  addition  to  its  duties  with  relation  to  controversies  under 
the  act  the  Industrial  Accident  Board  has  other  important  func- 
tions. By  section  18  of  Part  III  all  employers  must  notify  the 
Board  of  all  injuries.  This  will  be  a  substantial  part  of  the  Board's 
activities.  The  statistics  gathered  by  it  will  be  of  great  value, 
especially  in  determining  the  physical  cause  of  the  injury.  It  is 
evident  that  the  cost  of  the  new  law  will  depend  largely  on  the 
success  of  employers  in  preventing  accidents. 

The  Industrial  Accident  Board  can  render  invaluable  service 
to  employers  by  co-operating  with  them  in  the  practical  study  of 
accident  prevention.  It  is  the  Board's  duty,  also,  to  supervise 
the  rules  for  accident  prevention,  established  by  the  Massachu- 
setts Employees  Insurance  Association,  by  virtue  of  the  power 
conferred  on  it  by  section  18  of  Part  IV.  This  branch  of  the 
Board's  duties  will  be  of  great  public  consequence.  At  first,  of 
course,  there  will  be  many  controversies  relating  to  the  meaning 
of  the  new  law,  but  after  the  lapse  of  a  few  years  the  settlement 
of  controversies  will  not  be  so  difficult  a  matter.  But  accident 
prevention  will  have  a  continuously  increasing  importance. 

Another  important  function  of  the  Board  will  be  the  supervision 


52 

of  agreements  for  compensation.  It  is  believed  that  a  large  num- 
ber of  cases  will  be  disposed  of  in  this  manner,  and  the  Board 
must  be  careful  to  see  that  the  rights  of  the  parties  are  safe- 
guarded. This  will  be  in  the  nature  of  routine  work,  but  it  is 
an  important  part  of  the  act  and  will  tend  very  greatly  to  the 
success  of  the  law. 

The  provisions  of  Part  III  relating  to  the  settlement  of  con- 
troversies may  be  summarized  by  saying  that  disputes  are  to  be 
settled  by  a  committee  of  tliree  persons  under  the  chairmanship 
of  a  member  of  the  Industrial  Accident  Board.  There  is  an  ap- 
peal to  the  full  Board  w^hose  determination  is  final,  except  that  a 
question  of  law  only  may  be  taken  to  the  Supreme  Judicial  Court. 
The  Superior  Court  is  given  no  power  to  change  a  finding  of  the 
Board.  The  decisions  and  orders  of  the  Board  are  to  be  enforced 
by  decrees  of  the  Superior  Court. 

Section  17  provides  that  an  employer  shall  be  liable  to  pay 
compensation  to  employees  of  a  contractor  who  is  performing 
part  of  the  work  of  the  employer  on  the  premises  of  the  employer 
or  on  premises  under  his  control.  The  object  of  this  section  was 
to  prevent  the  possibility  of  defeating  the  act  by  hiring  an  irre- 
sponsible contractor  to  carry  on  part  of  the  employer's  work. 
Its  provisions  are  similar  to  those  of  the  English  act  of  1897,  but 
the  phraseology  of  the  first  part  of  the  section  was  copied  from 
the  Massachusetts  employers'  liability  act.  The  last  part  of  the 
last  sentence  was  taken  from  the  English  act  of  1906,  and  is  de- 
signed to  avoid  a  defect  which  was  found  to  exist  in  the  earlier 
English  act. 

Section  18  requires  all  employers  to  report  every  injury  to  the 
Industrial  Accident  Board. 

Part  IV. 
The  Massachusetts  Employees  Insurance  Association,  created 
by  the  law,  is  a  corporation  upon  the  mutual  plan.  It  was  pro- 
vided that  the  first  board  of  directors  should  be  named  by  the 
Governor  as  a  means  of  assuring  the  speedy  organization  of  the 
association;  in  all  other  respects  the  association  is  wholly  in  the 
hands  of  the  employers  who  may  become  subscribers.  It  is  be- 
lieved that  through  an  association  of  this  sort  the  active  co-opera- 
tion of  employers,  in  the  matter  of  compensation  and  prevention 
of  accidents,  may  be  secured. 


53 

The  association  is  in  no  sense  a  State  institution,  and  insurance 
through  it  is  not  State  insurance.  It  is  patterned  very  closely 
after  the  German  associations  of  employers  which  have  been  so 
successful  in  furnishing  insurance  to  employees  with  small  expense 
to  employers  and  in  the  prevention  of  accidents. 

The  first  board  of  directors  are  allowed  to  expend  $15,000  of 
the  State's  money  for  the  purpose  of  organization,  but  it  is  not 
intended  that  the  running  expenses  shall  be  paid  from  public  funds 
nor  that  the  association  shall  be  supported  by  the  credit  of  the 
Commonwealth.  The  institution  of  such  a  practice  would  defeat 
the  very  object  for  which  the  association  was  created;  that  is,  to 
secure  the  active,  intelligent  and  interested  attention  of  employers 
upon  the  problems  of  compensation  insurance  and  prevention  of 
accidents. 

Part  V. 

Section  1  provides  that  the  filing  of  a  claim  for  or  the  acceptance 
of  compensation  under  the  act  by  an  injured  employee  shall  con- 
stitute a  release  of  all  claims  against  the  employer  independent 
of  the  act. 

Section  2  includes  several  definitions.  The  definition  of  average 
Aveekly  wages  contemplates  the  determination  of  the  compensa- 
tion due  to  an  employee  whose  work  is  of  such  a  character  that 
he  does  not  work  for  one  employer  as  long  as  a  week.  This  defini- 
tion will  obviate  the  difficulty  experienced  in  England  of  determin- 
ing whether  certain  classes  of  laborers  were  covered  by  the  act 
of  1897.  It  required  an  appeal  to  the  House  of  Lords  to  settle 
the  question  whether  longshoremen  (dock  laborers)  were  entitled 
to  the  benefits  of  the  act.  Such  laborers  work  intermittently  for 
different  employers.  They  are  undoubtedly  covered  by  the 
Massachusetts  act. 

The  English  act  of  1906  went  further  than  the  Massachusetts 
law.  It  excludes  only  "  a  person  whose  employment  is  of  a  casual 
nature  and  who  is  employed  otherwise  than  for  the  purposes  of 
the  employer's  trade  or  business."  This  includes  persons  em- 
ployed to  do  an  occasional  service  contiected  with  the  trade.  The 
Massachusetts  law  does  not  cover  such  a  person. 

The  word  "subscriber,"  as  used  in  the  act,  requires  a  word  of 
comment.  The  provisions  of  section  3  of  Part  IV  were  added 
by  amendment  to  the  bill.     A  "subscriber"  is  bv  definition  still 


54 

only  a  member  of  the  Massachusetts  Employees  Insurance  Asso- 
ciation, but  by  the  terms  of  section  3  of  Part  V  any  person  who 
insures  in  other  companies  is  subject  to  the  rights  and  duties  of 
a  subscriber.  The  word  subscriber,  therefore,  becomes  practically 
equivalent  to  the  words  "employer  who  has  accepted  the  pro- 
visions of  the  act  by  insuring  the  compensation  of  his  employees." 

The  act  as  submitted  to  the  Legislature  did  not  contain  the 
provisions  of  section  3  of  Part  V.  The  only  insurance  authorized 
by  the  bill  before  it  was  amended  was  in  the  Massachusetts  Em- 
ployees Insurance  Association,  but  the  amended  act  allows  insur- 
ance in  any  liability  insurance  company  authorized  to  do  business 
in  the  Commonwealth.  This  section  as  finally  amended  provides 
further  that  all  premiums  shall  be  filed  with  the  insurance  com- 
missioner, and  that  no  premium  shall  take  effect  until  it  receives 
his  approval.  The  same  provision  in  regard  to  premiums  and 
assessments  by  the  Massachusetts  Employees  Insurance  Associa- 
tion is  found  in  section  17  of  Part  IV. 

Chapter  666  of  the  Acts  of  1912  supplements  the  law  in  two 
particulars. 

Section  1  of  this  act  provides  that  the  insurance  commissioner 
may  withdraw  his  approval  of  the  premiums  or  rates  of  either  the 
Massachusetts  Employees  Insurance  Association  or  any  stock 
or  mutual  liability  insurance  company. 

Section  2  provides  that  the  written  notice  of  the  employee  of 
a  subscriber,  that  he  claims  his  right  of  action  at  common  law, 
shall  be  given  in  such. manner  as  the  Industrial  Accident  Board 
may  approve. 


55 


IV.    BRIEF  DESCRIPTION  OF  FOREIGN  LAWS.i 

A  study  of  foreign  legislation  discloses  four  systems,  namely: 
(a)  simple  compensation  like  the  English  law,  which  makes  the 
employer  liable  to  his  injured  employees  for  definite  amounts,  but 
does  not  require  the  insurance  of  this  liability  for  the  benefit  of 
the  injured  employee;  (6)  compensation  with  the  requirement  of 
some  form  of  insurance,  the  employer  being  allowed  to  choose  one 
of  several  approved  forms  of  insurance,  as  exemplified  by  the 
Italian  law;  (c)  compulsory  mutual  insurance,  such  as  is  in  opera- 
tion in  several  European  countries,  notably  Germany,  which 
obliges  emplo^'ers  to  insure  in  state  supervised  mutual  associa- 
tions; (d)  state  insurance,  like  that  of  Norway,  which  requires 
employers  to  insure  in  an  institution  operated  by  the  state.  The 
details  of  these  systems  vary  in  the  different  countries,  but  one 
principle  underlies  them  all  and  gives  a  certain  degree  of  unity  to 
all  such  laws,  however  much  they  may  differ  in  form  or  in  method 
of  operation.  Accidents  are  regarded  as  a  necessary  incident  of 
industrial  operations,  and  the  cost  of  compensation  is  considered 
a  fixed  charge  of  the  business  to  be  added  to  the  cost  of  the  prod- 
uct and  to  be  finally  borne  by  the  whole  communit}^  as  consumers. 

Great  Britain.  i 

The  first  compensation  act  in  Great  Britain  was  passed  by  Par- 
liament in  '1897.  This  was  limited  to  certain  occupations  and 
industries,  and  covered  about  one  half  of  the  working  popula- 
tion of  the  country.  In  1900  a  second  act  was  passed  which 
brought  agricultural  laborers  under  the  compensation  system.  Fi- 
nally, on  December  21,  1906,  a  general  law  was  enacted  which 
amended  these  acts  and  extended  the  compensation  system  to 
include  practically  all  occupations.  It  also  extended  the  prin- 
ciple of  compensation  to  cover  certain  industrial  diseases,  as  well 
as  to  all  injuries  by  "accident  arising  out  of  and  in  the  course  of 
the  employment." 
This  act  makes  the  employer  directly  liable  to  compensate  any 

'  The  full  text  of  foreign  laws  will  be  found  in  the  twenty-fourth  annual  report  of  the  United 
States  Commissioner  of  Labor. 


56 

person  who,  while  in  his  service,  suffers  accidental  injury  or  con- 
tracts a  specified  disease,  according  to  a  certain  scale.  Casual 
laborers  and  persons  "  employed  otherwise  than  by  way  of  manual 
labor  whose  remuneration  exceeds  £250  ($1,216.63)  a  year"  are 
not  included  within  the  provisions  of  the  law.  If  the  injury  is 
due  to  the  employee's  "serious  and  wilful  misconduct,"  however, 
the  employer  is  not  liable  for  compensation  unless  such  accident 
results  in  death  or  serious  and  permanent  disablement.  Nor  is 
compensation  payable  if  the  injury  does  not  result  in  disability 
for  a  period  of  more  than  one  week;  but  if  the  disability  extends 
beyond  the  end  of  the  second  week  the  entire  period  from  the  date 
of  the  injury  is  included. 

Under  this  system  the  following  scale  of  compensation  is  pro- 
vided: In  case  of  death  dependents  wholly  dependent  upon  the 
injured  workman  receive  a  sum  equal  to  his  earnings  during  the 
three  years  next  preceding  the  injury,  but  not  less  than  £150 
($729.98)  nor  more  than  £300  ($1,459.95).  Partial  dependents 
receive  such  a  sum,  not  in  excess  of  the  foregoing,  as  may  be 
agreed  upon  between  the  parties  or,  in  the  absence  of  such  agree- 
ment, may  be  determined  on  arbitration  under  the  act,  as  reason- 
able and  proportionate  to  the  injury  sustained  by  them. 

In  the  event  that  no  dependents  are  left,  the  employer  must 
provide  reasonable  medical  and  burial  expenses,  not  exceeding 
£10  ($48.87). 

If  the  injury  does  not  prove  fatal,  but  results  in  total  or  partial 
incapacity  for  work,  the  injured  workman  receives  a  weekly  pay- 
ment during  incapacity  of  50  per  cent,  of  his  average  weekly 
earnings,  or  loss  of  earning  power  if  disability  is  partial,  but  not 
more  than  £1  ($4.87)  a  week.  Full  wages  are  allowed  as  compen- 
sation up  to  10  shillings  ($2.43)  a  week  in  case  the  injured  work- 
man is  under  twenty-one  years  of  age  at  the  time  of  the  accident. 

This  act  does  not  disturb  the  right  of  employees  under  the 
common  law  or  the  employers'  liability  law  enacted  in  1880.  An 
injured  workman  or  his  dependents  in  case  of  his  death  may  sue 
the  employer  for  damages  or  accept  the  compensation  provided 
in  the  act.  Acceptance  of  payments  under  the  act  concludes  the 
right  to  bring  a  suit,  but  a  suit  may  be  brought  without  forfeiting 
compensation  under  the  act  if  such  suit  fails. 

The  act  does  not  require  employers  to  insure  their  risk,  but 


57 

attempts  to  safeguard  the  interests  of  beneficiaries  by  giving 
them  a  preferred  claim  on  the  assets  of  bankrupt  employers  for 
compensation  to  the  amount  of  £100  ($486.67),  and  by  trans- 
ferring the  rights  of  the  employer  against  any  insurance  company, 
in  respect  of  liability  under  the  act,  to  their  benefit. 

The  act  provides  for  lump-sum  payments  in  case  of  death,  but 
it  is  the  growing  custom  of  the  courts  to  hold  these  sums  for  the 
benefit  of  the  beneficiaries.  In  non-fatal  cases  weekly  payments 
are  provided  for,  with  the  possibility  of  compounding  the  same 
for  a  lump  sum  after  a  certain  time  and  with  the  approval  of  the 
court. 

If  the  claimant  and  the  employer  liable  for  compensation  are 
unable  to  reach  an  agreement  as  to  the  amount  or  any  other 
question,  provision  is  made  for  arbitration  of  the  disputes.  If 
this  method  fails  the  matter  is  settled  by  the  courts  through  the 
appointment  of  an  arbitrator  wuth  full  powers,  or  otherwise  as 
the  court  may  decree. 

The  characteristic  features  of  this  system  are  that  a  definite 
scale  of  compensation  is  fixed,  that  the  individual  employer  is 
made  responsible  for  this  compensation,  and  that  he  is  not  required 
to  insure  his  risk. 

Italy. 

This  law  was  enacted  March  17,  1898,  and  went  into  effect 
September  17,  1898.  It  was  amended  June  29,  1903,  and  issued 
in  codified  form  January  31,  1904. 

The  law  provides  for  compulsory  insurance,  but  leaves  it  to 
the  choice  of  the  employer,  who  bears  the  entire  cost,  to  take  out 
this  insurance  in  the  National  Accident  Insurance  Fund,  in  an 
approved  stock  or  mutual  company,  or  in  private  employers' 
insurance  funds. 

The  scale  and  distribution  of  benefits  differ  considerably  from 
those  of  any  other  system  now  in  operation.  In  case  of  death, 
within  two  years  after  the  accident,  the  insurance,  which  amounts 
to  a  sum  equal  to  six  times  the  annual  earnings  of  the  deceased 
workman  with  a  maximum  of  10,000  lire  ($1,930),  is  absolutely 
payable  whether  there  are  dependents  or  not.  The  surviving  con- 
sort may  get  anywhere  from  two  fifths  to  the  entire  amount  of 
this  indemnity  depending  upon  the  existence  of  other  dependents. 
Certain  annuities  are  provided  for  children,  parents,  grandparents, 


58 

or  brothers  and  sisters,  if  there  are  such  relations,  out  of  tliis 
amount.  A  pecuUar  provision  of  this  law  is  that  in  the  absence 
of  heirs  the  indemnity  is  turned  into  a  special  fund  which  is  appli- 
cable to  the  payment  of  indemnities  due  from  insolvent  employers 
and  to  the  prevention  of  accidents. 

Employees  temporarily  disabled  are  paid  one  half  of  daily 
wages  for  not  more  than  three  months.  Permanent  disability  is 
compensated  at  the  same  rate  as  death,  namely,  by  the  payment 
of  the  amount  of  six  times  the  annual  wages,  but  not  less  than 
3,000  lire  ($579)  for  complete  disability. 

The  government  guarantees  all  payments. 

The  characteristic  features  of  this  system  are  the  compulsory 
insurance  of  payments  to  beneficiaries,  in  either  a  State  or  a 
private  institution,  ^nd  the  fact  that  such  payments  must  be 
made  in  fatal  cases  whether  the  deceased  leaves  dependents  or 
not. 

Germany. 

Prior  to  the  adoption  of  a  system  of  social  insurance  the  various 
German  States,  as  well  as  the  imperial  government,  had  attempted 
to  remedy  the  defects  of  the  old  civil  law  method  of  providing 
for  injured  employees  by  the  enactment  of  stringent  employers' 
liability  laws.  Prussia  passed  such  a  law  covering  railroad  em- 
ployment as  early  as  1838.  In  1873  this  law  was  extended  to 
cover  the  entire  empire  and  to  include  mines,  quarries,  and  fac- 
tories; this  law  required  of  the  plaintiff  proof  of  negligence  on 
the  part  of  the  employer  except  in  the  case  of  railroads. 

The  German  system  includes  three  kinds  of  insurance  which 
are  conducted  and  supported  as  independent  enterprises,  but 
which  are  more  or  less  dovetailed  together  on  the  side  of  the 
benefits  provided.  These  three  forms  with  the  dates  of  enact- 
ment are:  sickness  insurance,  1883;  accident  insurance,  1884; 
and  invalidity  and  old  age  insurance,  1889,  to  which  widows',  or 
survivors',  insurance  was  added  in  1911. 

The  first  steps  toward  the  introduction  of  this  system  were 
taken  in  1881  when  a  bill  was  submitted  to  the  imperial  parlia- 
ment providing  for  accident  insurance.  After  some  considera- 
tion of  this  measure  it  was  withdrawn  by  the  government,  and 
an  investigation  of  industrial  accidents  was  undertaken  as  a  pre- 
liminary step  to  more  satisfactory  legislation.     After  the  results 


59 

of  this  statistical  study,  which  covered  the  data  in  regard  to 
2,000,000  workmen,  had  been  obtained,  the  work  of  drafting  a 
law  went  on  and  two  bills  were  introduced  in  1882.  One  of  these 
provided  for  compulsory  insurance  against  sickness  on  the  mutual 
plan,  and  the  other  was  an  accident  insurance  measure. 

The  sickness  insurance  law  was  enacted  first,  June  13,  1883, 
and  became  operative  on  December  1,  1884.  This  provided  com- 
pensation for  the  first  thirteen  weeks  of  disability  due  to  accidents 
as  well  as  in  case  of  illness. 

A  compulsory  accident  insurance  law  was  passed  on  July  6,  1884, 
which  went  into  operation  on  October  1,  1885.  This  law  covered 
only  certain  industries  such  as  manufacturing,  mining,  etc.  It 
was  supplemented  by  the  passage  on  March  15,  1886,  of  a  law 
covering  government  employees. 

On  May  5,  1886,  a  law  was  enacted  extending  the  sickness  and 
accident  insurance  to  employees  in  agriculture  and  forestry,  and 
during  1887  the  building  trades,  seamen  and  others  engaged  in 
navigation  were  brought  under  the  system. 

Finally,  on  June  26,  1889,  a  "  law  relating  to  invahdity  and  old 
age  insurance"  was  passed.  This  completed  the  system,  but  by 
subsequent  enactments  and  codifications,  the  last  of  which  was 
adopted  in  1911,  administrative  changes  and  improvements  have 
been  introduced  into  the  various  divisions. 

While  the  accident  insurance  is  the  part  of  the  system  which 
is  of  primary  interest  in  this  study,  it  does  not,  taken  alone,  give 
an  adequate  idea  of  the  provisions  for  compensation  to  the  vic- 
tims of  industrial  accidents  under  the  German  laws.  The  sick- 
ness insurance  funds,  which  are  derived  from  contributions  from 
bo.th  employers  and  employees  in  the  proportions  of  one  third  and 
two  thirds,  respectively,  provide  the  following  benefits  in  case  of 
industrial  accidents:  medical  attendance  and  50  per  cent,  of 
wages,  beginning  with  the  fourth  day  and  continuing  to  the  end 
of  the  thirteenth  week.  These  funds  are  administered  by  local 
associations,  in  the  management  of  which  the  emploj^ers  and  em- 
ployees are  represented  in  proportion  to  their  contributions,  sub- 
ject to  the  control  of  the  imperial  insurance  ofiice. 

The  accident  insurance  is  provided  through  mutual  associations 
(Berufsgenossenschaften)  organized  along  industrial  lines  and  sup- 
ported entirely  at  the  expense  of  employers  who  are  compelled  by 


60 

law  to  become  members  thereof.  These  associations  assess  the 
cost  according  to  certain  risk  scales^  and  have  the  power  to  in- 
spect factories  and  plants  and  to  order  the  installation  of  safety 
devices  and  regulations.  Employers  who  have  an  unusually  large 
number  of  accidents  are  penalized  by  being  compelled  to  pay 
higher  rates. 

In  general,  medical  attendance  and  compensation  after  the 
thirteenth  week  are  provided  from  the  funds  of  these  associations. 
They  also  provide  all  payments  in  case  of  deaths  due  to  accidents, 
and  may  in  some  cases  meet  other  expenses. 

After  the  fourth  week  disability  due  to  accidents  is  compen- 
sated at  a  higher  rate  than~sickness.  From  the  beginning  of  the 
fifth  week  until  the  end  of  the  thirteenth  week  16f  per  cent,  of 
wages  is  added  to  the  50  per  cent,  provided  by  the  sickness  funds. 
This  is  paid  by  the  accident  association,  or,  in  certain  cases,  by 
the  individual  employer  in  whose  service  the  person  was  injured. 

Beginning  with  the  fourteenth  week  compensation  is  provided 
by  the  accident  associations.  If  the  disability  is  total  the  rate  of 
compensation  is  66f  per  cent,  of  wages,  which  is  paid  until  death 
or  during  the  period  of  such  disability.  In  cases  where  the  care 
of  a  nurse  or  attendant  is  required  the  rate  may  be  as  high  as 
100  per  cent,  of  wages.  In  case  of  partial  disability  the  benefits 
are  diminished  in  accordance  with  the  lessened  earning  capacity 
of  the  injured  person. 

In  case  death  results  from  the  accident,  funeral  expenses  to  the 
amount  of  at  least  50  marks  ($11.90)  are  provided  from  the  acci- 
dent insurance  fund,  and  a  pension  for  the  widow  of  20  per  cent, 
of  the  deceased  workman's  wages  is  paid  during  her  lifetime  or 
until  she  remarries.  On  her  remarriage  she  receives  a  lump  sum 
settlement  equal  to  three  times  the  amount  of  her  annual  pension. 
Pensions  for  children  under  sixteen  years  of  age  are  provided  at 
the  rate  of  20  per  cent,  each  of  the  workman's  wages,  but  the 
total  amount  of  all  pensions  is  limited  to  60  per  cent,  of  the  earn- 
ings of  the  deceased.  Other  relations  and  dependents  receive 
pensions  if  there  is  a  residue  within  the  60  per  cent,  after  provid- 
ing for  widow  or  widower  and  children. 

If  the  annual  earnings  of  the  injured  workman  exceed  1,800 
marks  ($428),  only  one  third  of  the  excess  above  that  amount  is 
taken  into  account  in  computing  pensions. 


61 

Payment  of  pensions  is  made  through  the  post  office.  The  gov- 
ernment, therefore,  guarantees  the  pensioners  against  loss.  It  in 
turn  collects  the  amounts  disbursed  from  the  accident  associa- 
tions with  interest,  and  the  associations  at  stated  intervals  assess 
their  members  to  meet  this  expense,  to  pay  running  expenses, 
including  inspection  and  the  investigation  of  safety  appliances, 
and  to  provide  a  reserve  fund. 

Under  this  system  the  expenses  of  management  have  been  re- 
duced to  a  small  percentage  of  the  amounts  expended  in  pensions. 
This  varies  in  different  associations,  but  including  the  work  of 
accident  prevention  it  does  not  exceed  17  per  cent,  on  the  average 
of  the  amount  collected  from  employers.  The  most  important 
advantage  that  has  been  derived  from  this  system  is  the  great 
improvement  in  methods  of  accident  prevention  which  has  re- 
sulted from  the  studies  and  investigations  of  the  accident  asso- 
ciations. 

In  case  of  disputes  it  is  provided  that  such  controversies  shall 
be  settled  by  the  "superior  insurance  offices,"  which,  under  the 
law  as  enacted  in  1911,  take  the  place  of  the  "arbitration  courts 
for  workmen's  insurance."  A  final  appeal  may  be  taken  from 
the  decisions  of  these  offices  to  the  imperial  insurance  office  in 
certain  cases. 

The  chief  characteristics  of  the  German  system  are  that  it  is 
compulsory  mutual  insurance,  and  that  compensation  is  provided 
in  ever}'  case  except  where  the  injury  is  intentionally  self-inflicted. 

Norway. 

Norway  adopted  the  system  of  compulsory  state  insurance  by 
the  enactment  of  a  law,  July  23,  1894,  which  applies  to  "all  work- 
men and  employees"  engaged  in  certain  enumerated  occupations 
and  industries,  whether  they  are  carried  on  under  private  employ- 
ers or  by  the  state  or  a  commune.  This  law  became  operative  on 
July  1,  1895,  and  has  been  amended  in  many  particulars  by  the 
acts  of  December  23,  1899,  and  of  June  12,  1906. 

The  employments  covered  are  described  in  general  terms  in  the 
law,  but  in  the  making  of  rates  they  are  clearly  defined  and-^ 
grouped  in  sixteen  classes.  The  law  does  not  cover  agricultural 
labor,  domestic  service,  and  many  of  the  less  hazardous  occupations. 
It  provides,  however,  for  the  voluntary  insurance  of  employees  in 


62 

businesses  not  subject  to  the  act,  "either  collectively  through 
their  employers  or  by  each  individual  workman  for  himself." 

This  insurance,  whether  in  those  employments  enumerated,  in 
which  employers  are  required  to  insure  their  workmen,  or  in  other 
lines  where  voluntary  insurance  is  taken  out,  is  carried  by  "a 
pubUc  insurance  institution  guaranteed  by  the  state."  This  insti- 
tution is  managed  by  a  board  of  directors  appointed  by  the  Crown, 
and  its  expenses  are  borne  by  the  state  treasury.  The  fund  out 
of  which  compensation  is  paid  is  derived  from  premiums  paid  by 
employers  which  are  based  on  the  wages  of  employees.  The  low- 
est daily  wage  taken  into  account,  however,  in  the  computation 
of  such  premiums  is  4  crowns  ($1.07)  for  adult  workmen  and  1^ 
crowns  (40.2  cents)  for  male  and  1  crown  (26.8  cents)  for  female 
apprentices  or  children.  No  part  of  such  premiums  may  be  taken 
from  the  wages  of  employees. 

The  following  scale  of  benefits  is  provided  by  the  insurance 
institution  in  case  of  accidents  which  result  in  bodily  injury  or 
death,  all  compensation  beginning  at  the  end  of  the  fourth  week 
after  the  accident  and  continuing  "as  long  as  required:" — 

(a)  For  complete  disabiUty  60  per  cent,  of  the  injured  work- 
man's wages,  but  not  less  than  150  crowns  ($40.20)  a  year.  Wages 
in  excess  of  1,200  crowns  ($321.60)  are  not  taken  into  account  in 
computing  compensation. 

(h)  For  partial  disability,  which  results  in  at  least  5  per  cent, 
loss  of  earning  capacity,  such  a  proportion  of  the  compensation 
for  complete  disability  as  the  reduction  in  earnings  bears  to  full 
wages  before  the  accident. 

Medical  treatment  is  also  paid  for  b\^  the  insurance  institution 
in  all  cases. 

If  death  results  from  the  accident  pensions  are  paid  to  depend- 
ents as  follows:  to  a  surviving  widow  until  death  or  remarriage, 
or  to  a  surviving  widower,  "if  incapable  of  work,  as  long  as  his 
disability  continues,"  20  per  cent,  of  the  wages  of  the  deceased 
workman.  To  children  under  sixteen  years  of  age  with  no  sur- 
viving parent  20  per  cent.,  or  with  a  surviving  parent  15  per 
cent.  each.  In  no  case,  however,  shall  such  pensions  exceed  in 
the  aggregate  50  per  cent,  of  the  workman's  wages.  If  a  widow 
remarries  she  receives  three  years'  pension  as  a  lump-sum  set- 
tlement.   Other  dependent  relations  may  receive  pensions  aggre- 


63 

gating  20  per  cent,  of  the  wages  of  the  injured  employee,  or  such 
a  per  cent.,  less  than  20,  as  may  be  left  after  deducting  the  pen- 
sions of  the  spouse  and  children  from  the  maximum  of  50  per  cent. 
Such  pensions  are  to  continue  until  death  or  the  need  of  help  has 
ceased. 

Besides  these  pensions  the  insurance  institution  must  pay  funeral 
expenses  to  the  amount  of  50  crowns  ($13.40). 

The  law  provides  that  "if  the  injured  person  has  himself  inten- 
tionally caused  the  accident,  he  shall  have  no  claim  for  compensa- 
tion." 

The  act  contemplates  the  passage  of  supplemental  legislation 
to  provide  compensation  in  case  of  sickness  and  for  the  first  four 
weeks  of  disability  due  to  accidents.  Until  this  law  is  enacted, 
however,  it  is  provided  that  medical  care  and  the  scale  of  compen- 
sation set  forth  in  the  act  shall  be  paid  to  the  injured  workman 
during  the  first  four  weeks  of  disability  by  the  employer,  unless 
the  employee  is  a  member  of  a  sick  benefit  fund  or  other  organiza- 
tion which  is  responsible  for  such  payments.  Extraordinary  ex- 
penditures for  hospital  care,  transportation  of  the  injured  person, 
etc.,  must  be  provided  by  the  insurance  institution  during  this 
period,  "unless  the  injured  person  is  to  receive  them  from  amounts 
as  due  him  from  other  sources." 

Disputes  arising  under  the  act  may  be  appealed  from  the  deci- 
sion of  the  insurance  institution  to  a  special  commission  of  seven 
members,  made  up  of  a  president  ".who  shall  be  learned  in  the 
law,"  a  physician  and  a  technician,  appointed  by  the  Crown  for 
terms  of  five  years,  and  two  employers  and  two  employees  ap- 
pointed by  the  Storthing  for  terms  of  three  years.  The  decision 
of  this  commission  is  final  on  most  points,  but  "  disputes  concern- 
ing questions  which  are  not  by  their  nature  exclusively  matters 
of  opinion  .  .  .  may  be  carried  to  the  courts  for  settlement." 

The  characteristic  feature  of  this  system  is  that  it  compels 
employers  to  insure  in  a  state  institution,  and  puts  the  entire 
burden  of  the  cost  of  providing  compensation  on  them  without 
relieving  them  of  the  burden  of  making  direct  payments  during 
the  first  four  weeks  of  disability. 

The  laws  of  the  countries  already  described  are  typical  of  the 
four  systems  of  compensation  and  insurance  which  are  found  in 
more   or   less   modified   form   in  other   foreign   countries.     The 


64 

remaining  countries  are  arranged  in  alphabetical  order,  and  each 
system  is  described  only  in  so  far  as  is  necessary  to  classify  it 
with  reference  to  the  typical  systems  and  to  set  forth  its  chief 
points  of  variation. 

»  Alberta. 

This  law  was  enacted  March  5,  1908,  and  became  effective 
January  1, 1909.  It  is  a  compensation  act  of  the  English  type.  It 
makes  the  individual  employer  liable  to  pay  compensation  in  case 
of  all  injuries  received  by  employees  in  certain  hazardous  occupa- 
tions and  industries,  except  those  due  to  the  serious  and  wilful 
misconduct  of  the  injured  person.  The  enumerated  employments 
are  the  same  as  those  contained  in  the  English  act  of  1897. 

The  scale  of  benefits  is  somewhat  higher  than  that  provided  in 
the  English  act,  being  in  case  of  death,  three  years'  earnings,  not 
less  than  $1,000  and  not  more  than  $1,800;  and  in  case  of  com- 
plete disability,  50  per  cent,  of  wages;  not  more  than  $10  a  week. 

A  two  weeks'  waiting  period  is  provided  for;  and  a  private  plan 
of  compensation  may  be  substituted  by  an  employer  if  the  plan 
is  favored  by  a  majority  of  his  employees  and  receives  the  approval 
of  the  Attorney-General. 

Austria. 

This  law  was  enacted  December  28, 1887,  and  went  into  operation 
on  November  1, 1889.  It  provides  for  compulsory  mutual  insurance 
similar  to  the  German  system.  Amendments  have  been  enacted  in 
each  of  the  following  years:  1888,  1889,  1890,  1891,  1892,  1894, 
and  1902.  The  most  important  of  these  amendatory  acts  is  that 
of  July  20,  1894,  which  extended  the  scope  of  the  law  to  include 
a  large  number  of  employments  not  covered  by  the  original  act. 
The  law  now  covers  practically  all  employments  of  a  hazardous 
nature  except  mining  which  is  under  a  separate  act. 

The  chief  points  of  difference  between  this  law  and  that  of  the 
German  empire  are  that  the  mutual  associations  of  employers 
which  carry  the  accident  insurance  are  organized  on  the  basis  of 
territorial  rather  than  industrial  groups,  and  that  these  associa- 
tions pay  compensation  from  the  end  of  the  fourth  instead  of  the 
thirteenth  week,  which  greatly  lessens  the  burden  borne  by  the 
sickness  insurance  associations.  As  an  offset,  however,  against 
this  added  burden  on  the  accident  associations  employees  are 


65    • 

required  to  contribute  10  per  cent,  of  the  funds,  whereas  the  Ger- 
man law  collects  the  entire  amount  from  employers. 

The  scale  of  benefits  is  somewhat  lower  than  that  of  the  Ger- 
man system,  the  maximum  in  cases  of  death  being  only  50,  and 
in  permanent  disability  only  60,  per  cent,  of  the  average  daily 
wages  of  the  injured  workman.  Wages  in  excess  of  2,400  crowns 
($487.20)  are  not  considered  in  computing  pensions.  The  method 
of  distribution  among  different  classes  of  dependents  requires  no 
special  comment. 

The  insurance  associations  are  conducted  under  the  supervi- 
sion of  the  minister  of  the  interior,  who  has  the  power  of  increas- 
ing assessments  if  he  regards  it  necessary  for  the  security  of  the 
payment  of  pensions. 

Disputes  are  settled  by  permanent  boards  of  arbitration  com- 
posed of  a  judicial  officer,  appointed  by  the  minister  of  justice, 
two  experts,  appointed  by  the  minister  of  the  interior,  and  a  rep- 
resentative each  of  employers  and  employees.  No  appeal  is 
allowed  from  the  decisions  of  these  boards,  one  of  which  is  estab- 
lished for  each  insurance  institution. 

BELGlinVI. 

This  law,  which  was  enacted  December  24,  1903,  and  went  into 
effect  July  1, 1905,  provides  for  compulsory  compensation  at  the  sole 
expense  of  the  employer.  It  differs  from  the  English  law  chiefly 
in  the  provisions  for  the  security  of  payments.  If  employers  do 
not  provide  for  the  payment  of  benefits  through  some  form  of 
insurance,  it  is  provided  that  they  must  make  deposits  of  cash  or 
securities  to  meet  all  pension  payments,  and  that  all  such  employers 
shall  be  taxed  for  the  purpose  of  building  up  a  state  guaranty 
fund,  to  secure  the  payments  in  temporary  disability  cases. 

The  law  applies  to  all  employers,  public  or  private,  in  certain 
enumerated  industries,  to  those  in  certain  other  industrial  lines 
who  employ  five  or  more  persons,  or  three  or  more  in  agricultural 
and  mercantile  establishments,  and  to  those  engaged  in  under- 
takings which  are  declared,  by  royal  decree,  to  be  dangerous  in 
character. 

The  scale  of  compensation  is  also  somewhat  different  from  that 
of  the  English  act.  In  case  of  death  an  annuity  of  30  per  cent, 
of  his  annual  earnings  for  the  period  of  expectancy  of  life,  reckoned 


•     66 

on  the  basis  of  the  age  of  the  deceased  employee,  is  payable  to 
dependents.  In  case  of  wages  of  more  than  2,400  francs  ($463.20), 
or  of  less  than  365  francs  ($70.45),  the  annuity  is  calculated  on 
those  sums  respectively. 

The  payments  in  the  case  of  nonfatal  accidents  are  at  the  rate 
of  50  per  cent,  of  loss  of  earnings,  subject  to  the  above-mentioned 
maximum  and  minimum  provisions,  and  continue  during  dis- 
ability. 

The  employee  may  demand  the  payment  in  cash  of  one  third 
of  the  capitalized  value  of  his  pension  if  he  so  desires.  In  such 
cases  the  pension  would  be  reduced  accordingh\ 

British  Columbia. 
This  law  was  enacted  June  21,  1902,  and  became  effective  May 
1,  1903.  It  follows  closely  the  English  model  after  which  it  was 
patterned,  covering  practically  the  same  industries  as  the  British 
act  of  1897.  The  only  variation  of  importance  is  the  limitation 
of  the  payments  in  nonfatal  cases  to  $10  a  week  and  to  the  total 
amount  of  $1,500. 

Cape  Colony. 

This  law  was  enacted  June  6,  1905,  and  went  into  operation  on 
September  1, 1905.  It  differs  from  the  English  law  only  in  certain 
details,  the  most  important  of  which  are  the  following:  the  wait- 
ing period  is  only  three  days,  and  compensation  is  limited  to  three 
years'  wages,  or  not  more  than  £600  ($2,919.90)  in  nonfatal  cases. 
The  amount  recoverable  in  case  of  the  death  of  the  employee  by 
those  totally  dependent  is  not  to  exceed  three  years'  wages,  or 
£400  ($1,946.60). 

All  employments  except  domestic,  messenger  or  errand  service 
and  agriculture  are  covered  by  the  act,  and  employees  recover  for 
all  injuries  arising  out  of  or  in  the  course  of  their  employment, 
except  those  due  to  their  own  gross  carelessness. 

Denmark. 
This  law  was  enacted  January  7,  1898,  and  made  effective  on  Jan- 
uary 19, 1899.    It  was  amended  May  15, 1903.    It  is  realh'  a  compul- 
sory compensation  act,  although  from  its  title  it  would  appear  to 
be  an  insurance  law.    The  emploj^er  must  provide  the  scale  of 


67 

benefits  set  forth  in  the  act  by  direct  payment,  unless  he  chooses 
to  insure  them  to  his  workmen  through  a  poUcy  in  some  recog- 
nized insurance  company. 

The  law  covers  certain  employments  which  are  named  or  de- 
scribed in  general  terms  in  the  act,  or  which  may  be  designated 
by  the  minister  of  the  interior.  These  are  for  the  most  part  such 
as  are  obviously  of  a  hazardous  character.  Agriculture,  mercan- 
tile establishments,  and  domestic  service  are  not  included. 

The  chief  points  of  difference  between  this  law  and  the  English 
act  are  a  waiting  period  of  thirteen  weeks,  the  emphasis  laid  on 
insurance,  and  certain  variations  in  the  scale  of  compensation  and 
methods  of  payment.  This  difference  may  be  characterized  in  a 
general  way  by  saying  that  each  question  is  approached  from  the 
opposite  direction.  For  example,  a  lump-sum  settlement  is  pro- 
vided in  the  case  of  permanent  disability,  w^hich  may  be  commuted 
at  the  request  of  the  injured  employee  to  an  annuit}'. 

Compensation  in  case  of  death  is  a  lump  sum  equal  to  four 
years'  earnings,  not  less  than  1,200  crowns  ($321.60)  nor  more 
than  3,200  crowns  ($857.60).  In  case  of  permanent  and  complete 
disability  it  is  a  sum  equal  to  six  years'  earnings,'  not  less  than 
1,800  crowns  ($482.40)  nor  more  than  4,800  crowns  ($1,286.40). 

Disputes  are  settled  by  the  Workmen's  Insurance  Council  which 
consists  of  a  president  appointed  by  the  Crown,  two  other  mem- 
bers appointed  by  the  Crown,  of  whom  one  shall  be  a  physician, 
two  employers  selected  by  the  minister  of  the  interior,  and  two 
workmen  belonging  to  industries  included  under  the  law.  Ap- 
peals from  the  decisions  of  this  council  may  be  taken  to  the  min- 
ister of  the  interior. 

Finland. 

This  law  was  enacted  December  5,  1895,  and  became  effective 
January  1 ,  1898.  It  provides  for  compulsory  insurance,  and  puts  the 
entire  cost  of  such  insurance  on  the  employer.  He  has  the  option 
of  taking  out  such  insurance  with  a  government  insurance  office 
or  an  approved  mutual  or  stock  company.  If  he  is  unable  to 
secure  insurance  from  any  of  these  sources  he  may  be  permitted 
to  carry  his  own  risk  on  the  presentation  of  satisfactory  guarantees. 

Practically  all  dangerous  employments  are  covered  by  the  act, 
and  all  employees,  except  those  whose  duties  are  exclusively 
supervisory,  must  be  insured.     In  computing  compensation,  wages 


68 

in  excess  of  720  marks  ($138.96)  are  not  considered,  and  those 
under  300  marks  ($57.90)  are  assumed  to  be  of  that  amount, 
except  that  no  adult  workman  may  receive  more  than  full  wages. 
A  waiting  period  of  six  days  is  provided,  and  injuries  intention- 
ally self-inflicted  or  due  to  gross  carelessness  are  not  compen- 
sated. 

In  case  of  death  the  widow  receives  20  per  cent,  of  the  deceased 
workman's  annual  earnings  as  a  permanent  pension,  or  until  she 
remarries,  when  a  lump  sum  equal  to  two  years'  payments  is 
given  her  in  final  settlement.  Other  dependents  are  provided  for, 
but  the  total  of  all  pensions  is  limited  to  40  per  cent,  of  the  work- 
man's earnings.  In  nonfatal  cases  the  rate  of  compensation  is  60 
per  cent,  of  the  loss  of  earnings. 

If  the  injured  person  or  a  dependent  is  not  satisfied  with  the 
decision  of  the  insurance  carrier  in  making  settlements  he  may 
appeal  to  the  courts. 

France. 

This  law  was  enacted  April  9,  1898,  and  went  into  effect  on 
July  1-,  1899.  It  has  been  amended  or  supplemented  by  acts 
passed  March"  22,  1902,  March  31,  1905,  April  12,  1906,  and  July 
17,  1907. 

The  law  is  like  that  of  Belgium  described  above,  which  was 
evidently  patterned  after  the  French  system.  It  is  essentially  a 
compulsory  compensation  act,  with  elective  insurance  and  a 
state  guarantee  fund  to  secure  payments  to  workmen  whose 
employers  do  not  carry  insurance. 

Certain  enumerated  employments  are  covered  and  others  may 
be  brought  under  the  act  by  the  request  of  both  emplovers  and 
employees  concerned. 

All  persons  employed  in  these  establishments  are  entitled  to 
compensation  for  injuries  received  during  or  on  account  of  labor 
unless  produced  intentionally  by  the  victim. 

One  feature  of  this  law  is  of  importance  because  it  has  been 
copied  in  several  other  systems.  This  is  the  provision  that  the 
compensation  shall  be  reduced  if  the  injury  was  due  to  the  inex- 
cusable fault  of  the  injured  workman,  and  increased  to  an  amount 
not  exceeding  full  wages  if  the  injury  was  caused  by  the  inex- 
cusable fault  of  the  employer. 

The  law  provides  for  a  waiting  period  of  five  days,  and  the 


69 

scale  of  compensation  is  practically  the  same  as  that  of  the  Ger- 
man system,  being '60  per  cent,  for  dependents  in  case  of  death, 
and  66|  per  cent,  in  nonfatal  cases. 

The  state  guarantee  fund  provides  security  of  payment  of  pen- 
sions when  employers  or  insurance  carriers  become  insolvent,  and 
all  employers  within  the  scope  of  the  law  are  taxed  to  support  this 
fund.  Claims  for  temporary  disability  are  secured  by  prefer- 
ence in  bankruptcy  proceedings. 

Greece. 

This  law  was  enacted  March  6,  1901,  and  made  effective  retro- 
actively as  of  the  date  of  January  1, 1901 .  It  is  limited  in  its  applica- 
tion to  mining,  quarrying,  and  metallurgical  establishments. 

It  is  essentially  a  compensation  act,  supplemented  by  a  species 
of  state  insurance.  The  employer  is  required  to  provide  medical 
attendance  and,  in  case  of  death,  funeral  expenses  to  the  amount 
of  60  drachmas  ($11.58),  and  one  half  of  wages  from  the  fourth 
day  to  the  end  of  the  third  month  following  the  injury.  There- 
after, during  the  continuance  of  disability,  one  half  of  the  bur- 
den of  compensation  is  borne  by  the  Miners'  Fund,  raised  by  a 
tax  upon  the  industries  covered  by  the  act.  If  disability  is  only 
partial  the  rate  of  compensation  is  one  third  of  wages. 

Pensions  to  dependents  in  case  of  death  are  limited  to  three 
fourths  of  the  amount  to  which  the  injured  employee  was  or  would 
have  been  entitled  for  disability.  If  this  matter  is  not  determined 
at  the  time  of  his  demise  his  disability  is  assumed  to  have  been 
complete. 

Pensions  are  allowed  to  exceed  100  drachmas  ($19.30)  per 
month  by  only  one  fourth  of  the  wages  of  the  injured  employee 
in  excess  of  the  amount  which  would  entitle  him  to  that  sum. 
In  the  case  of  apprentices  and  minors  receiving  less  than  2f 
drachmas  (48  cents)  a  day,  the  pension  is  calculated  on  that 
amount. 

The  distribution  of  pensions  among  dependents  varies  some- 
what in  detail  from  other  European  systems,  but  the  only  points 
worthy  of  notice  are  that  the  widow's  pension  ceases  with  re- 
marriage, and  that  female  children  continue  to  receive  pensions 
until  marriage,  when  they  are  given  the  amount  of  one  year's 
payments  as  a  dowry. 


70 

Employers  are  not  required  to  insure  their  liability  to  pay  pen- 
sions and  expenses,  but  may  relieve  themselves  of  this  task  by 
contributing  a  sum,  sufficient  to  meet  such  charges,  to  the  funds 
of  a  mutual  benefit  association.  All  pensions  are,  however,  guar- 
anteed by  the  Miners'  Fund  which  is  under  government  control, 
and  in  case  of  failure  of  the  employer  this  fund  has  a  preferred 
claim  on  his  assets, 

Hungary. 

This  law  was  enacted  April  9,  1907,  and  became  effective  on 
July  1,  1907.  While  this  law  provides  for  compulsory  mutual 
insurance,  similar  in  its  scope  and  general  principles  to  the  Ger- 
man and  Austrian  systems,  it  accomplishes  its  purposes  through 
a  somewhat  different  form  of  organization.  The  management  of 
both  the  sickness  and  accident  insurance  is  consolidated  in  what 
is  called  the  National  Workmen's  Sickness  and  Accident  Insur- 
ance Fund.  There  are  really  two  of  these  funds  with  headquar- 
ters at  Budapest  and  Agram,  and  covering  diiferent  political  or 
geographical  divisions  of  the  "Holy  Hungarian  Crown,"  although 
in  the  law^  the  fund  is  spoken  of  as  a  unit.  This  fund  deals  with 
cases  of  sickness  and  accidents  through  local  branches  of  two 
kinds,  namely,  District  Workmen's  Insurance  Funds,  which  handle 
both  kinds  of  insurance,  and  Establishment  Sick  Funds,  which 
cover  only  sickness  insurance.  The  National  Fund  is  a  corpora- 
tion governed  by  delegates  from  the  local  funds  of  both  kinds, 
under  the  supervision  of  the  minister  of  commerce.  Its  general 
expenses  are  met  from  the  public  treasury,  while  the  cost  of  com- 
pensation is  met  by  equal  assessments  upon  employers  and  em- 
ployees for  the  sickness  benefits,  and  assessments  upon  employers 
alone  for  the  accident  insurance. 

Hungary  has  improved  upon  its  Austrian  and  German  models 
in  another  important  respect.  The  law  provides  for  the  accumu- 
lation of  adequate  reserves  in  all  branches  of  the  system. 

Disability  due  to  accidents  is  compensated  from  the  end  of  the 
third  day  until  the  end  of  the  tenth  week  from  the  sickness  funds; 
after  that  from  the  accident  funds.  The  maximum  rate,  60  per 
cent.,  is  the  same  for  permanent  disability  and  for  total  depend- 
ents in  case  of  death. 

Disputes  are  settled  by  arbitration  courts,  with  an  appeal  to 
the  state  workmen's  insurance  office. 


71 


Luxemburg. 

This  law  was  enacted  April  5, 1902,  and  went  into  effect  April  15, 
1903.  A  sickness  insurance  law  had  previously  been  enacted  July 
31,  1901. 

This  is  a  compulsory  mutual  insurance  system  like  that  of  the 
German  empire,  from  which  it  varies  only  in  slight  details.  Only 
one  mutual  accident  insurance  association  is  provided  for  in  the 
law.  This  covers  the  entire  country,  but  has  a  number  of  local 
agencies. 

Netherlands. 

This  law  was  enacted  January  2, 1901,  and  went  into  effect  June  1, 
1901.  It  has  been  supplemented  and  amended  by  laws  enacted 
February  3  and  December  8,  1902,  and  July  24,  1903. 

The  law  is  a  compulsory  compensation  act  covering  practically 
every  line  of  employment  or  industry,  whether  under  private  or 
public  control.  Insurance  is  optional  and  may  be  placed  with 
the  Royal  Insurance  Bank,  a  state  institution,  or  in  an  approved 
private  company  or  association. 

All  payments  are  made  through  the. Royal  Insurance  Bank, 
whether  by  the  employers  directly  or  by  the  insurance  carriers. 
The  expenses  of  this  institution,  except  one  half  of  the  salaries  of 
the  board  of  directors  which  is  paid  by  the  state,  are  borne  by 
assessments  on  all  employers  whether  they  insure  in  it  or  not. 

There  is  nothing  unique  in  the  scale  of  compensation  or  method 
of  distribution  of  payments.  The  amount  receivable  by  a  widow 
is  somewhat  larger  than  under  most  European  systems.  She  is 
given  a  pension  of  30  per  cent,  of  the  wages  of  the  deceased  work- 
man until  death  or  remarriage,  with  a  lump-sum  settlement  equal 
to  two  years'  pension  in  the  latter  case.  Total  payments  to  de- 
pendents are  limited  to  60  per  cent,  of  earnings. 

For  complete  disability  the  rate  of  compensation  is  70  per  cent, 
of  daily  earnings,  excluding  Sundays  and  holidays,  and  begins  on 
the  day  after  the  accident.  Wages  in  excess  of  4  florins  ($1.61) 
per  day  are  not  taken  into  account  in  computing  pensions. 

The  Royal  Insurance  Bank  decides  all  questions  as  to  compensa- 
tion, but  appeals  from  its  decisions  are  allowed  to  local  arbitra- 
tion councils  in  which  employers  and  employees  are  equally  rep- 
resented, and  a  final  appeal  may  be  taken  to  "a  senate  of  the 
realm." 


72 


New  South  Wales. 

This  law  was  enacted  November  5,  1900,  and  went  into  effect 
January  1,  1901.  It  was  amended  December  28,  1901,  and  on 
July  5,  1905,  the  scale  of  compensation  was  increased  by  order 
of  the  Governor  who  has  this  power  under  the  law. 

The  law  is  very  limited  in  its  scope,  as  it  applies  only  to  the 
mining  industry.  It  is  a  compulsory  insurance  act,  all  payments 
of  benefits  being  made  from  the  New  South  Wales  Miners'  Acci- 
dent Relief  Fund,  which  is  administered  by  a  board  consisting  of 
6  members  appointed  by  the  Governor.  The  burden  of  supply- 
ing this  fund  is  apportioned  as  follows:  every  workman  pays  in 
4^  pence  (9  cents)  a  week,  and  the  like  amount  is  collected  from 
the  government  and  the  employers  in  the  industry,  each  paying 
50  per  cent,  of  this  amount.  In  view  of  the  large  contributions  of 
the  workmen  the  benefits  are  very  small.  In  case  of  death  the 
pension  to  dependents  is  only  10  shillings  ($2.43)  a  week,  and  15 
shillings  ($3.65)  a  week  is  the  maximum  paj^ment  in  the  case  of 
complete  and  permanent  disability.  These  payments,  however, 
continue  during  the  life  of  the  claimants. 

New  Zealand. 

This  law  was  first  enacted  October  18,  1900,  and  was  amended 
October  3,  1902,  November  23,  1905,  October  29,  1906,  and  was 
finally  codified  in  1908,  to  become  operative  in  its  present  form 
on  January  1,  1909. 

It  is  a  compulsory  compensation  act  patterned  after  that  of 
Great  Britain,  but  like  the  laws  of  several  other  colonies  it  limits 
the  compensation  in  case  of  permanent  disability  to  a  fixed  amount. 
In  this  case  it  is  £300  ($1,459.95).  The  compensation  in  case  of 
death  is  three  years'  earnings,  but  not  less  than  £200  ($973.30) 
nor  more  than  £400  ($1,946.60). 

One  special  feature  of  this  act,  not  found  in  the  EngUsh  law, 
but  contained  in  several  of  the  State  laws  in  the  United  States,  is 
a  list  of  specified  injuries  the  compensation  for  which  is  a  definite 
percentage  of  that  for  total  disability  in  lieu  of  all  other  payments. 
This  list  names  24  maiming  injuries,  and  the  scale  ranges  from 
5  to  100  per  cent,  of  the  compensation  for  total  disability. 


73 


In  case  disputes  arise  concerning  compensf 
tied  by  the  court  of  arbitration,  created  by  the" 
ciliation  and  arbitration  act  of  1908,  for  the  purpose  of  settling 
other  industrial  disputes. 

Quebec. 

This  law  was  enacted  May  29, 1909,  and  became  effective  January 
1,  1910.  It  covers  certain  enumerated  industries  which  are  re- 
garded as  of  a  hazardous  character. 

The  law  is  a  compulsory  compensation  act  of  the  Enghsh  type, 
though  it  contains  some  features  and  phrases  drawn  from  the 
French  law.  The  waiting  period  is  seven  days,  and  no  compen- 
sation is  payable  if  the  injury  was  intentionally  self-inflicted. 

The  scale  of  compensation  is  practically  the  same  as  that  of  the 
English  act,  except  that  four  years'  wages  are  given  to  dependents 
in  fatal  cases,  and  that  the  French  principle  is  adopted,  which 
provides  for  a  reduced  or  augmented  compensation  if  the  accident 
was  due  to  the  inexcusable  fault  of  the  injured  employee,  or  of 
his  employer,  as  the  case  may  be. 

QuEENSLiVND. 

This  law  was  enacted  December  20,  1905,  and  became  effective 
March  31,  1906. 

Practically  the  only  points  of  difference  between  this  law  and 
the  English  act  are  the  somewhat  higher  amounts  of  compensa- 
tion, a  limitation  of  payments  in  nonfatal  cases  to  £400  ($1,946.60), 
and  the  provision  that  aged  and  infirm  employees  may  agree  in 
advance  to  accept  smaller  amounts  in  case  of  injury. 

Russia. 

This  law  was  enacted  June  15,  1903,  and  went  into  effect  Jan- 
uary 14,  1904.  It  is  a  compulsory  compensation  act  covering  a 
limited  range  of  occupations. 

The  waiting  period  is  only  three  days,  as  in  Germany  and  sev- 
eral other  European  countries.  Compensation  is  payable  in  every 
case  except  where  injury  is  intentionally  self-inflicted.  The  bur- 
den of  payments  rests  entirely  upon  the  employer,  who  has  the 
option  of  meeting  them  directly  or  of  providing  for  them  through 
insurance  in  an  authorized  company  or  society. 

The  scale  of  compensation  is  the  same  for  death  and  permanent 


74 

disability,  namely,  66f  per  cent,  of  earnings.  Pensions  continue 
until  terminated  by  the  death  of  the  annuitant,  but  by  the  mutual 
consent  of  employer  and  beneficiary  they  may  be  commuted  to 
a  lump-sum  settlement  at  ten  times  their  annual  amount. 

In  case  of  temporary  disability  the  rate  of  compensation  is  50 
per  cent,  of  the  loss  of  earning  power. 

South  Australia. 

This  law  was  enacted  December  5,  1900,  and  became  effective 
June  1,  1901.     It  was  amended  in  1904. 

The  law  is  a  close  copy  of  the  British  act  of  1897.  The  only 
essential  difference  is  in  the  matter  of  compensation  for  permanent 
disability,  which  is  limited  to  £300  ($1,459.95),  the  same  as  for 
death. 

Spain. 

This  law  was  enacted  January  30, 1900,  and  became  effective  July 
28,  1900.  It  is  a  compulsory  compensation  act  similar  to  that  of 
Great  Britain. 

The  entire  burden  of  compensation  rests  upon  the  employer,  but 
he  may  shift  it  to  an  authorized  insurance  company  if  he  chooses 
to  do  so. 

The  compensation  provided  by  law  is  not  so  generous  as  that 
under  the  English  act.  It  ranges  from  a  sum  equal  to  one  year's 
earnings  of  the  injured  employee,  payable  to  a  widow  as  the  sole 
surviving  dependent,  to  a  sum  equal  to  two  years'  earnings  in 
case  there  are  also  children  under  sixteen  years  of  age,  and  in  case 
of  complete  and  permanent  disability.  In  all  cases  daily  earnings 
are  to  be  considered  as  not  less  than  1^  pesetas  (29  cents). 

One  special  feature  of  this  act  is  worthy  of  notice.  It  provides 
for  a  technical  commission  consisting  of  three  engineers  and  one 
architect,  whose  duty  it  is  to  devise  methods  and  appliances  for 
the  prevention  of  accidents.  On  the  advice  of  this  commission 
the  government  prescribes  rules,  regulations  and  appliances  to 
promote  safety  and  sanitation  in  every  industry.  It  is  further 
provided  that  compensation  shall  be  increased  50  per  cent,  in 
cases  of  accidents  occurring  in  establishments  where  these  regu- 
lations and  appliances  have  not  been  installed. 

Disputes  concerning  compensation  may  be  carried  to  special 
permanent  labor  tribunals. 


75 


Sweden. 

This  law  was  enacted  July  5,  1901,  and  went  into  effect  on  Jan- 
uary 1,  1903.     It  was  amended  June  3,  1904. 

The  law  covers  all  employments  except  domestic  service.  It  is 
a  compulsory  compensation  act  with  permissive  insurance  in  the 
State  Insurance  Institute  created  by  the  law.  If  such  insurance 
is  provided  the  employer  is  relieved  from  all  obligation  to  pay 
compensation  so  long  as  the  insurance  is  in  force.  Insurance  in 
private  companies  and  mutual  associations  is  allowed,  but  such 
insurance  does  not  release  the  employer  from  his  obligation  to 
provide  the  payments  set  forth  in  the  act,  except  that  actual  pay- 
ments by  such  insurance  carriers  shall  be  deducted  from  the 
amounts  due  from  him  to  the  beneficiaries. 

The  scale  of  compensation  is  not  based  upon  the  earnings  of  the 
injured  employee,  but  is  limited  to  a  certain  amount,  namely, 
300  crowns  (S80.40)  a  year.  A  pension  of  this  amount  is  payable 
to  dependents  in  case  death  results  within  two  years  after  the 
accident,  and  to  the  injured  employee  if  his  disability  is  complete 
and  permanent. 

Disputes  may  be  settled  by  arbitration  or  by  means  of  suits 
brought  in  the  ordinary  courts. 

Transvaal. 

This  law  was  enacted  August  20,  1907,  and  went  into  effect  April 
1,  1908.  It  is  a  compulsory  act  of  the  English  type  and  covers 
injuries  to  "any  white  person"  in  all  employments  except  domestic 
service. 

The  compensation  is  limited  to  two  years'  wages,  but  not  more 
than  £500  ($2,433.25),  in  case  of  death,  and  to  three  years'  wages, 
but  not  more  than  £750  ($3,649.88),  in  case  of  permanent  and 
complete  disability. 

These  amounts  are  much  more  generous  than  the  compensation 
provided  by  the  English  act  or  in  the  laws  of  other  colonies. 

Western  Australia. 
This  law  was  enacted  February  19, 1902,  and  went  into  effect  the 
same  year.     It  is  a  compulsory  compensation  act  and  covers  cer- 
tain enumerated  employments  and  such  others  as  may  be  declared 


76 

by  a  proclamation  of  the  Governor  to  be  dangerous  or  injurious 
to  health. 

The  scale  of  compensation  is  as  follows:  in  case  of  death  a  sum 
equal  to  three  years'  earnings,  but  not  less  than  £200  ($973.30) 
nor  more  than  £400  ($1,946.60)  to  those  wholly  dependent,  and 
in  case  of  permanent  and  complete  disability  50  per  cent,  of 
weekly  earnings,  but  not  more  than  £2  ($9.73)  a  week  nor  the 
amount  of  £300  ($1,459.95)  as  a  total  liability.  Benefit,s  to  those 
partly  dependent  and  for  partial  disability  are  correspondingly 
lower  than  these  amounts. 


77 


V.    BRIEF  DESCRIPTION  OF  THE  LAWS  IN  THE 
UNITED  STATES. 

The  first  statute  on  this  subject  was  passed  by  the  State  of  Mary- 
land in  1902  (chapter  139).  It  increased  the  liability  of  employers 
in  certain  industries,  but  provided  that  they  might  escape  this 
liability  by  paying  a  tax  to  the  State  Insurance  Commissioner, 
who  was  given  wide  powers  w4th  respect  to  the  administration  of 
the  fund  thus  established  and  payments  from  it.  Employers  were 
allowed  to  deduct  one  half  the  tax  from  the  wages  of  employees. 
This  act  went  into  effect  July  1,  1902,  and  on  April  28,  1904,  it 
was  held  invalid  by  the  Court  of  Common  Pleas  of  Baltimore,  in 
a  case  not  reported  in  the  official  reports,  on  the  ground  that  it 
deprived  the  employee  of  a  trial  by  jury  (see  Quarterly  Journal 
of  Economics,  August,  1902,  p.  591,  and  February,  1905,  p.  320). 

In  1909  the  State  of  Montana  passed  an  act  imposing  a  tax  on 
the  operation  of  coal  mines  and  coal  washers,  in  order  to  estab- 
lish a  fund  for  the  payment  of  compensation  to  injured  employees. 
The  employees  were  to  contribute.  The  Supreme  Court  of  Mon- 
tana held  this  statute  invalid,  as  by  its  terms  an  injured  employee 
could  sue  at  law  or  accept  the  benefits  of  the  act.  The  court 
decided  that  as  the  law  applied  to  only  one  class  of  industries  it 
deprived  that  class  of  the  equal  protection  of  the  laws  by  impos- 
ing this  double  burden  on  it  (Cunningham  v.  Northwestern  Im- 
provement Co.,  44  Mont.  180). 

In  1910  the  State  of  New  York  passed  two  laws  relating  to 
compensation  for  injured  employees.  One  of  these  was  elective 
and  applied  to  all  employers  of  labor.  It  is  still  in  force  in  New 
York  and  will  be  described  later.  The  other  was  a  compulsory 
law  applying  only  to  certain  hazardous  industries.  The  injured 
employee  could  elect  to  bring  an  action  for  damages  or  to  accept 
the  benefits  of  the  act.  The  validity  of  this  law  was  tested  in  the 
courts,  and  the  Court  of  Appeals,  in  March,  1911,  held  it  unconsti- 
tutional, as  depriving  the  employers  in  the  specified  industries  of 
their  property  without  due  process  of  law  (Ives  v.  South  Buffalo 
Ry.  Co.,  201  N.  Y.  171). 

Thirteen  states  besides  Massachusetts   have  laws  relating  to 


78 

workmen's  compensation.  They  are  all  elective  except  those  of 
Arizona,  Nevada,  and  Washington,  and  only  in  Washington  and 
Ohio  is  insurance  obligatory.  The  employer  is  not  required  to 
accept  an  act  of  the  elective  type,  but  if  he  does  not  do  so  he  is 
subject  to  a  liability  for  negligence  greater  than  that  imposed  by 
the  law  of  the  State  before  the  compensation  act  was  passed. 
This  is  brought  about  by  abolishing  one  or  more  of  the  defenses 
of  contributory  negligence,  assumption  of  risk,  and  negligence  of 
a  fellow  servant,  which  have  been  hitherto  available  to  the  em- 
ployer in  damage  suits  by  the  employee. 

The  full  text  of  the  statutes  will  be  found  in  the  appendix.  The 
present  chapter  contains  a  short  description  of  each  of  them. 
They  are  arranged  in  alphabetical  order. 

Arizona. 

This  law  goes  into  effect  September  1,  1912.  It  is  a  compulsory 
compensation  act  and  applies  to  certain  "especially  dangerous" 
employments  enumerated  in  the  law.  By  agreement,  employers 
and  employees  in  other  lines  may  "accept  and  adopt  the  provi- 
sions of  this  act."  All  injuries  due  to  accidents  "arising  out  of, 
and  in  the  course  of,  such  employment"  are  covered  except  those 
which  do  not  result  in  more  than  two  weeks'  disability. 

The  law  leaves  the  employer  and  the  employee  free  to  reject 
any  settlement  and  to  retain  their  rights  under  other  laws.  More- 
over, employers  and  employees  may  contract  out  of  the  act,  if 
such  contract  provides  for  compensation  equal  to  that  provided 
by  the  act. 

No  provision  is  made  for  medical  attendance  except  in  fatal  cases. 

The  amounts  of  compensation  are:  — 

For  death,  a  sum  equal  to  twenty-four  hundred  times  one  half 
the  daily  wages  of  the  deceased,  but  not  more  than  $4,000,  is  pay- 
able to  the  personal  representative  of  the  deceased,  to  be  held  in 
trust  and  applied  to  the  support  of  widow  and  children,  or,  in  the 
absence  of  such  dependents,  to  the  support  of  "a  father-or  mother 
or  sister  dependent  on  him  for  support."  If  there  are  no  depend- 
ents, the  employer  is  required  to  pay  the  reasonable  medical  and 
funeral  expenses  of  the  decedent. 

For  total  incapacity  to  work,  extending  beyond  a  period  of  two 
weeks,  there  is  a  semimonthly  payment  of  50  per  cent,  of  the  aver- 


79 

age  semimonthly  earnings  of  the  injured  employee,  dating  from  the 
time  of  the  accident  and  continuing  during  disability,  or  until  the 
total  payments  amount  to  $4,000. 

For  partial  disability,  the  semimonthly  payments  are  to  equal  50 
per  cent,  of  the  loss  of  earning  capacity,  and  are  not  to  exceed  the 
maximum  amount  of  $4,000. 

All  questions  arising  under  the  act  may  be  determined:  (1)  by 
written  agreement  between  the  parties,  (2)  by  arbitration,  or  (3)  by 
reference  and  submission  to  the  Attorney-General  of  the  State.  If 
the  parties  do  not  agree  upon  a  settlement  by  either  of  these  three 
modes,  the  controversy  may  be  determined  by  a  suit  at  law. 

California. 

The  law  took  effect  September  1,  1911.  It  has  established  a 
system  of  elective  compensation  applicable  to  all  public  or  pri- 
vate employers.  All  injuries  are  covered  which  are  caused  by  an 
accident  while  the  employee  is  acting  within  the  scope  of  his 
employment,  and  is  performing  service  growing  out  of  and  inci- 
dental to  his  employment,  except  those  due  to  his  wilful  mis- 
conduct. 

If  the  injury  is  due  to  the  gross  negligence  or  wilful  miscon- 
duct of  an  employer  or  to  the  breach  of  a  statutory  safety  regu- 
lation the  injured  employee  may  claim  the  benefits  of  the  act  or 
bring  an  action  for  damages. 

No  payment  is  made  for  the  first  week.  Medical  attendance, 
not  to  exceed  $100  in  amount,  is  to  be  furnished  for  ninety  days. 

The  amount  of  compensation  is  as  follows :  — 

For  death,  a  weekly  payment  is  made  to  dependents  equal  to 
the  wages  of  the  deceased,  which  are  taken  to  be  not  less  than 
$333.33  nor  more  than  $1,666.66  yearly,  the  total  amount  payable 
being  four  times  the  average  annual  wages.  To  those  who  are 
only  partly  dependent  the  amounts  payable  are  in  proportion  to 
the  extent  of  dependency.  If  there  are  no  dependents,  the  funeral 
expenses,  not  exceeding  $100,  are  paid. 

For  total  disability  there  is  a  payment  of  65  per  cent,  of  the 
average  weekly  wages  computed  as  above  described,  and  if  the 
injured  employee  requires  the  assistance  of  a  nurse  after  the  period 
of  ninety  days,  during  which  medical  attendance  is  required,  the 
weekly  payment  is  increased  to  100  per  cent,  of  wages. 


80 

For  partial  disability,  65  per  cent,  of  the  loss  of  wages  is  paid. 
In  no  case  do  payments  for  disability  extend  beyond  a  period  of 
fifteen  years. 

Controversies  are  determined  by  the  Industrial  Accident  Board, 
consisting  of  three  persons,  which  has  general  supervision  over  the 
operation  of  the  act.     There  is  a  limited  appeal  to  the  courts. 

Illinois. 

The  law  took  effect  May  1,  1912.  It  is  an  elective  compensa- 
tion act  applying  to  hazardous  industries.  All  injuries  are  covered 
except  those  deliberately  self-inflicted.  If  caused  by  the  inten- 
tional omission  of  the  employer  to  comply  with  a  statutory  safety 
regulation,  the  injured  employee  may  sue  his  employer  at  law. 
There  is  a  waiting  period  of  seven  days.  Medical  expenses  not 
to  exceed  $200  are  furnished  for  eight  weeks. 

The  law  requires  all  employers  in  employments  subject  to  the 
act  to  report  to  the  State  Bureau  of  Labor  Statistics  all  fatal 
accidents  and  such  others  for  which  compensation  is  paid  as  result 
in  more  than  a  week's  loss  of  time. 

The  amounts  of  compensation  are  as  follows :  — 

For  death,  a  sum  equal  to  four  times  the  average  annual  wages 
of  the  deceased  is  paid,  not  less  than  $1,500  nor  more  than  $3,500. 
These  amounts  are  to  be  paid  at  the  same  intervals  at  which  the 
employee  was  paid,  or  weekly  at  the  rate  of  one  half  wages  per 
week.  If  the  dependents  are  only  partly  dependent,  a  propor- 
tionate amount  shall  be  paid  to  them.  If  there  are  no  dependents 
funeral  expenses  not  exceeding  $150  are  paid. 

For  total  disability  there  is  a  payment  of  50  per  cent,  of  wages, 
not  less  than  $5  nor  more  than  $12  a  week,  for  eight  years  or  until 
the  sums  paid  amount  to  $3,500.  Afterward  8  per  cent,  of  the 
death  benefit  is  payable  for  life  in  monthly  instalments  of  not  less 
than  $10  each. 

For  partial  disability  there  is  a  weekly  pajinent  proportional  to 
the  employee's  loss  of  wages,  not  to  exceed  the  death  benefit.  In 
case  of  a  disfigurement  to  the  hands  or  face,  without  resulting  dis- 
ability, the  arbitrators  may  award  suitable  compensation  not  ex- 
ceeding one  quarter  of  the  death  benefit. 

Controversies  are  determined  bv  three  arbitrators,  one  chosen 


81 

by  each  of  the  parties  and  the  third  by  the  judge  of  the  county- 
court.    There  is  an  appeal  from  the  decision  of  the  arbitrators  to 
the  court,  when  a  trial  by  jury  may  be  claimed. 

Kansas. 

The  law  went  into  effect  January  1, 1912.  It  applies  to  employ- 
ers engaged  in  hazardous  industry  who  employ  15  or  more  persons. 
It  is  an  elective  law.  All  injuries  are  covered  except  those  self- 
inflicted  or  due  to  the  intoxication  of  the  employee,  or  his  wilful 
failure  to  use  a  guard  or  wilful  breach  of  statutory  safety  regula- 
tions. There  is  a  waiting  period  of  two  weeks,  and  medical  at- 
tendance during  this  period  is  not  required. 

If  an  injury  is  caused  by  the  negligence  of  an  employer  (in- 
cluding that  of  a  partner  or  the  managing  director  of  a  corpora- 
tion) the  injured  employee  may  elect  to  sue  him  at  law  or  to  take 
the  benefits  given  by  the  act.  ' 

An  employer  is  allowed  to  substitute  a  private  arrangement 
with  his  employees  for  the  compensation  payable  under  the  act, 
if  the  superintendent  of  insurance,  with  the  approval  of  the  At- 
torney-General, certifies  that  the  payments  are  as  favorable  to 
the  employee  as  the  compensation  provided  by  the  act. 

The  amounts  of  compensation  are :  — 

For  death,  three  times  the  annual  wages  of  the  deceased  is 
paid,  not  less  than  $1,200  nor  more  than  $3,600.  If  dependents 
reside  outside  of  the  United  States  or  the  Dominion  of  Canada, 
the  maximum  is  $750.  A  proportionate  amount  is  paid  part 
dependents.  If  there  are  no  dependents  the  expenses  of  medical 
attendance  and  burial,  not  to  exceed  $100,  are  payable. 

For  total  incapacity  there  is  a  payment  of  50  per  cent,  of  the 
average  weekly  wages,  not  less  than  $6  nor  more  than  $15  per  week, 
for  a  period  of  ten  years. 

For  partial  incapacity  there  is  a  payment  of  50  per  cent,  of  loss 
of  earning  power,  not  less  than  $3  nor  more  than  $12  a  week,  for 
a  period  of  ten  years. 

Controversies  are  determined  by  a  standing  committee  repre- 
sentative of  employer  and  employee,  or  an  arbitrator  appointed 
by  the  parties  or  by  a  judge,  or  the  right  to  compensation  may  be 
enforced  in  court  with  a  jury  trial  if  claimed. 


82 


Maryland. 

In  1910  an  act  was  passed  which  appHed  only  to  clay  and  coal 
mining  in  Allegany  and  Garrett  counties.  It  provided  a  fund 
raised  by  taxing  both  employer  and  employee  which  was  to  be 
used  for  compensation. 

The  Legislature  has  provided  by  an  act  which  took  effect  on 
April  15,  1912,  that  it  shall  be  lawful  for  an  employer  to  insure 
his  employees  against  accident  or  death  and  thereby  escape  liabil- 
ity, except  for  failure  to  provide  safeguards  required  by  the  State. 
Such  insurance  may  be  taken  out  in  any  liability  insurance  com- 
pany. An  employer  with  at  least  1,500  employees  may  establish 
a  fund  which  may  be  deposited  with  the  insurance  commissioner. 
The  employer  must  in  every  case  pay  at  least  50  per  cent,  of  the 
premiums,  guarantee  the  solvency  of  the  fund,  and  provide  for 
the  expenses  of  managing  it.  Employees  who  contribute  to  the 
fund  may  elect  an  advisory  committee  who  shall  have  the  right 
to  examine  the  books  of  account.  Provisions  are  made  for  the 
distribution  of  the  fund  when  the  employer  wishes  to  discontinue 
it  or  if  he  goes  out  of  business.  Employers  are  not  allowed  to 
make  it  a  condition  of  employment  that  an  employee  shall  join 
in  the  scheme.  Premiums  to  be  paid  by  employees  may  be  de- 
ducted from  wages  by  the  employer.  If  an  employee  ceases  to  be 
employed  he  shall  lose  the  benefits  of  such  insurance,  except  as 
regards  accidents  happening  before. 

All  injuries  are  covered  except  those  due  to  the  employee's 
intoxication,  "or  wilful  and  deliberate  act  or  deliberate  intention 
to  cause  such  injury."  A  period  of  one  week  is  allowed  during 
which  no  payment  is  required. 

The  benefits  to  be  provided  by  the  insurance  are  stated  in  the 
act.  In  case  of  death  dependents  are  to  be  paid  a  sum  equal  to 
three  years'  wages  of  the  deceased,  not  less  than  $1,000,  with 
proportionate  amounts  for  persons  partly  dependent.  If  there  are 
no  dependents  the  reasonable  expense  of  medical  attendance  is 
to  be  paid,  and  a  further  sum  of  $75  to  $100  for  funeral  expenses. 
In  cases  of  total  disability  50  per  cent,  of  the  average  weekly  wages 
is  to  be  paid  for  life,  and  a  proportionate  payment  for  partial  dis- 
ability. Loss  of  both  hands  or  feet,  both  eyes,  or  one  hand  and 
one  foot  are  deemed  equivalent  to  total  disability.    Loss  of  one 


83 

hand  or  foot  is  equivalent  to  one  half  of  total  disability,  and  loss 
of  one  eye  is  equivalent  to  one  fifth  of  such  disability. 

Controversies  are  settled  by  an  arbitrator  appointed  by  the 
parties  or  by  the  judge  of  the  circuit  court. 

Massachusetts. 

The  law  went  into  effect  July  1,  1912.  It  is  an  elective  compen- 
sation law,  with  the  requirement  that  insurance  must  be  taken  out 
in  the  Massachusetts  Employees  Insurance  Association,  a  mutual 
company  on  the  German  plan,  or  in  a  liability  insurance  company. 
The  law  covers  all  employees.  Employers  of  persons  other  than 
domestic  servants  or  farm  laborers  are  subjected  to  an  increased 
liability  if  they  do  not  accept  the  act.  All  injuries  arising  out  of 
and  in  the  course  of  the  employment  are  covered,  except  those  due 
to  the  serious  and  wilful  misconduct  of  the  injured  employee.  If 
the  injury  be  due  to  the  serious  and  wilful  misconduct  of  the  em- 
ployer, or  of  his  superintendent,  the  amounts  of  compensation  are 
doubled. 

A  waiting  period  of  two  weeks  is  provided,  and  medical  attend- 
ance during  this  time  is  required. 

An  Industrial  Accident  Board  of  five  members  is  provided  which 
has  general  supervision  over  the  operation  of  the  act.  Employ- 
ers must  report  all  accidents  to  this  Board. 

The  amounts  of  compensation  are :  — 

For  death  there  is  a  weekly  payment  to  dependents  of  50  per 
cent,  of  the  average  weekly  wages  of  the  deceased,  not  less  than 
$4  nor  more  than  $10  a  week,  for  three  hundred  weeks,  with  a 
proportionate  amount  for  partial  dependents.  If  there  are  no 
dependents  the  reasonable  expenses  of  the  last  sickness  and  burial, 
not  to  exceed  $200,  are  paid. 

For  total  disability  there  is  a  payment  of  50  per  cent,  of  the 
average  weekly  wages,  not  less  than  $4  nor  more  than  $10  a  week, 
for  five  hundred  weeks,  but  not  more  than  $3,000. 

F6r  partial  disability  there  is  a  weekly  payment  for  three  hun- 
dred weeks  of  50  per  cent,  of  the  loss  of  earning  capacity,  but  not 
more  than  $10  a  week.  There  is  a  list  of  specified  injuries  for 
which  an  additional  payment  is  made,  the  amount  being  pre- 
scribed for  each  injury. 

Controversies  are  determined  by  an  arbitration  committee  under 


84 

the  chairmanship  of  a  member  of  the  Board,  the  other  two  mem- 
bers of  the  committee  being  chosen  by  the  parties.  An  appeal  is 
allowed  to  the  entire  Board  whose  determination  of  facts  is  final. 
Questions  of  law  may  be  taken  to  the  Supreme  Judicial  Court. 

The  justices  of  the  Supreme  Judicial  Court  of  Massachusetts,  in 
an  opinion  given  to  the  Senate  on  July  24,  1911,  pronounced  this 
law  constitutional.     (Opinion  of  the  Justices,  209  Mass.  607.) 

Michigan. 

The  law  goes  into  effect  September  1,  1912.  It  is  an  elective 
compensation  law,  with  the  added  requirement  that  the  employer 
shall  provide  for  the  payment  of  the  compensation  in  one  of  the 
four  ways  hereafter  mentioned.  It  applies  to  all  employees  except 
domestic  servants  and  farm  laborers.  Public  employers  are  com- 
pelled to  adopt  the  act.  A  waiting  period  of  two  weeks  is  estab- 
lished, with  the  provision  that  pajTuent  for  the  first  two  weeks 
shall  be  made  to  one  who  is  incapacitated  for  eight  weeks.  Medi- 
cal attendance  is  required  for  the  first  three  weeks. 

The  employer  must  provide  for  pavment  of  the  compensation 

by:- 

1.  Furnishing  proof  satisfactory  to  the  Board  of  his  financial 
ability  to  pay  the  compensation. 

2.  Insuring  the  compensation  in  a  stock  company. 

3.  Insuring  in  a  mutual  company. 

4.  Subscribing  to  a  State  fund  under  the  administration  of  the 
Insurance  Commissioner.  The  details  of  administration  of  the 
fund  are  prescribed  in  the  act. 

The  amounts  of  compensation  are  as  follows :  — 

For  death  there  is  a  payment  of  50  per  cent,  of  the  average 
weekly  wages  of  the  deceased,  not  less  than  $4  nor  more  than  $10 
a  week,  for  three  hundred  weeks  for  dependents,  with  proportion- 
ate amounts  for  partly  dependent  persons.  If  there  are  no  de- 
pendents the  expenses  of  the  last  sickness  and  burial,  not  to  exceed 
$200,  are  paid. 

For  total  disability  there  is  a  payment  of  50  per  cent,  of  the 
average  weekly  wages,  not  less  than  $4  nor  more  than  $10  a  week, 
for  five  hundred  weeks,  with  a  limit  of  $4,000. 

For  partial  disability  there  is  a  payment  equal  to  50  per  cent. 


85 

of  the  loss  of  earning  capacity,  not  more  than  $10  a  week,  for 
three  hundred  weeks.  There  is  a  long  list  of  injuries  for  which 
the  amounts  of  compensation  are  specified. 

An  employer  may  with  the  approval  of  the  Board  relieve  him- 
self of  liability  to  pay  compensation  to  an  injured  employee  by 
depositing  with  a  trust  company  the  present  value  of  the  unpaid 
compensation  or  by  purchasing  an  annuity  covering  the  same. 

An  Industrial  Accident  Board  of  three  members  is  provided  to 
administer  the  law.  Controversies  are  to  be  determined  by  an 
arbitration  committee  under  the  chairmanship  of  a  member  of 
the  board,  the  other  two  members  of  the  committee  being  chosen 
by  the  parties.  An  appeal  is  allowed  to  the  Board,  whose  deter- 
mination is  final  on  the  facts,  though  a  question  of  law  may  be 
presented  to  the  supreme  court.  All  employers  must  report  acci- 
dents to  the  Board. 

Nevada. 

The  law  took  effect  July  1,  1911.  It  is  a  compulsory  law  apply- 
ing to  employers  engaged  in  hazardous  industries.  The  act  covers 
all  injuries  by  accident  arising  out  of  and  in  the  course  of  employ- 
ment, irrespective  of  negligence  on  the  part  of  the  employee.  The 
defenses  of  assumption  of  risk  and  negligence  of  a  fellow  servant 
are  abolished,  but  if  the  injured  employee  is  guilty  of  contribu- 
tory negligence  the  conipensation  is  to  be  awarded  in  proportion 
to  the  amount  of  such  negligence. 

The  injured  workman  may  elect  to  sue  at  law  or  to  accept  the 
benefits  of  the  act.  There  is  a  waiting  period  of  ten  days,  and 
medical  attendance  during  this  time  is  not  required. 

The  amounts  of  compensation  are :  — 

For  death,  a  sum  equal  to  three  years'  wages  of  the  deceased, 
not  less  than  S2,000  nor  more  than  $3,000,  is  paid  to  dependents; 
50  per  cent,  of  the  above  is  paid  to  those  partly  dependent.  If 
there  are  no  dependents  the  expenses  of  medical  attendance  and 
burial,  not  exceeding  $300,  are  paid. 

For  total  disability  there  is  a  payment  of  60  per  cent,  of  the 
average  weekly  wages,  and  a  proportionate  amount  for  partial 
disability  not  to  exceed  $3,000. 

There  is  an  additional  payment,  subject  to  the  same  limit,  of 
40  per  cent,  of  the  average  weekly  wages  for  five  years  for  loss  of 


86 

both  eyes,  hands  or  feet,  or  one  foot  and  one  hand,  one  eye  and 
one  foot  or  hand,  and  15  per  cent,  of  such  wages  for  the  loss  of 
one  of  these  members. 

Controversies  are  to  be  determined  by  three  arbitrators,  one 
chosen  by  each  of  the  parties  and  the  third  by  the  two  so  chosen. 
The  unanimous  decision  of  the  arbitrators  is  final,  except  for  the 
constitutional  right  of  appeal,  but  in  all  other  cases  there  may  be 
a  trial  in  court  in  the  same  manner  as  in  any  other  suit. 

New  Hampshire. 

This  law  became  effective  January  1,  1912.  It  is  elective  on  the 
part  of  the  employer  only,  and  applies  to  certain  hazardous  in- 
dustries. An  employer  who  accepts  the  act  must  satisfy  the  com- 
missioner of  labor  of  his  financial  ability  to  pay  the  prescribed 
compensation,  or  must  file  a  bond  conditioned  to  pay  such  com- 
pensation. An  injured  employee  may  either  sue  his  employer  at 
common  law  or  accept  the  benefits  of  the  act. 

A  waiting  period  of  two  weeks  is  provided,  and  no  compensa- 
tion is  due  for  an  injury  caused  by  the  intoxication,  violation  of 
law,  or  serious  or  wilful  misconduct  of  the  injured  employee.  Em- 
ployers are  not  required  to  furnish  medical  attendance. 

The  amounts  of  compensation  are  as  follows:  — 

For  death,  a  sum  equal  to  one  hundred  and  fifty-six  times  the 
average  weekly  wages  of  the  deceased,  but  not  exceeding  $3,000, 
is  payable  to  total  dependents  or  a  proportionate  part  of  it  to 
partial  dependents.  If  there  are  no  dependents  $100  is  to  be  paid 
for  the  expenses  of  the  last  sickness  and  burial. 

For  disability  there  is  a  payment  t)f  50  per  cent,  of  the  average 
weekly  wages  not  exceeding  $10  a  week  for  three  hundred  weeks. 

Controversies  are  to  be  determined  by  the  courts. 

New  Jersey. 

The  law  went  into  effect  July  4,  1911.  It  applies  to  all  employ- 
ers and  is  elective,  and  provides  the  exclusive  remedy  for  all  who 
accept  it. 

Compensation  from  the  fifteenth  day  is  awarded  for  all  injuries 
lasting  more  than  two  weeks,  except  where  the  injury  is  inten- 
tionally self-inflicted  or  due  to  the  intoxication  of  the  injured 


87 

employee.  During  the  first  two  weeks  medical  attendance  is  to 
be  furnished  by  the  employer,  the  expense  not  to  exceed  $100. 

The  act  provides  the  following  scale  of  compensation:  — 

The  dependents  of  an  employee  who  is  killed  receive  during 
three  hundred  weeks  a  stated  percentage  not  exceeding  60  per 
cent,  of  the  average  weekly  w^ages  of  the  deceased,  not  less  than  $5 
nor  more  than  $10  a  week,  according  to  the  following  schedule:  — 

Widow,  25  per  cent.;  widow  and  1  child  under  sixteen,  40  per 
cent.;  widow  and  2  children,  45  per  cent.;  widow  and  3  children, 
50  per  cent. ;  widow  and  4  children,  55  per  cent. ;  widow  and  5  or 
more  children,  60  per  cent.;  widow  and  father  or  mother  of  de- 
ceased, 50  per  cent.;  grandparents,  grandchildren  and  minor  or 
incapacitated  brothers  or  sisters,  25  per  cent.;  orphans  under  six- 
teen, 25  per  cent.,  with  10  per  cent,  additional  for  each  orphan 
in  excess  of  2. 

Nonresident  aliens  are  excluded.  If  there  are  no  dependents 
$200  is  paid  for  the  expenses  of  the  last  sickness  and  burial. 

For  permanent  total  disability  there  is  a  weekly  payment  of 
one  half  the  average  weekly  wages,  not  less  than  $5  nor  more 
than  $10  per  week,  for  four  hundred  weeks. 

For  permanent  partial  disability  the  period  of  payment  is  three 
hundred  weeks,  and  there  is  a  long  list  of  enumerated  injuries  for 
which  the  limits  of  payment  are  specified.  These  payments  are 
in  lieu  of  all  other  compensation. 

Controversies  are  to  be  determined  by  the  courts.  In  a  sup- 
plementary statute  provision  is  made  for  an  unpaid  commission 
of  six  persons  to  which  reports  of  accidents  must  be  sent.  Though 
not  directly  concerned  with  the  administration  of  the  act,  this 
commission  has  general  oversight  of  the  operation  of  the  law,  col- 
lects and  compiles  statistics  of  claims  and  settlements,  and  is  re- 
quired to  make  an  annual  report  to  the  Legislature  containing 
recommendations  for  such  changes  as  it  may  deem  necessary  for 
the  improvement  of  the  act. 

Judge  Martin  in  the  Court  of  Common  Pleas  for  Essex  County 
upheld  the  law  in  the  case  of  Sexton  v.  Newark  Tel.  Co.  (reported 
in  34  New  Jersey  Law  Journal,  368-391,  and  35  New  Jersey  Law 
Journal,  8-29).  It  has  not  yet  been  passed  on  by  the  highest 
court  of  the  State. 


88 


New  York. 

This  law  took  effect  September  1, 1910.  It  was  not  affected  by 
the  decision  in  Ives  v.  South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  when 
the  Court  of  Appeals  held  unconstitutional  another  law  passed 
at  the  same  time,^  and  is  still  in  force.  The  law  establishes  a  sys- 
tem of  elective  compensation  applicable  to  all  employers.  If  em- 
ployers do  not  accept  the  act,  they  are  subjected  to  an  increased 
liability,  which,  however,  is  not  so  stringent  as  that  imposed  by 
many  other  States.  All  injuries  are  covered  except  those  due  to 
the  serious  and  wilful  misconduct  of  the  employee.  If  the  injury 
be  due  to  the  serious  and  wilful  misconduct  of  the  employer,  or 
to  his  failure  to  obey  an  order  of  a  public  authority  with  relation 
to  safeguards,  the  injured  employee  may  bring  an  action  for 
damages. 

There  is  a  waiting  period  of  two  weeks,  and  medical  attendance 
during  this  period  is  not  required. 

The  amounts  of  compensation  are :  — 

For  death,  a  lump  sum  equal  to  twelve  hundred  times  the  daily 
earnings  of  the  deceased,  and  not  exceeding  $3,000,  is  paid.  A 
proportionate  amount  is  paid  to  persons  partly  dependent.  If 
there  are  no  dependents  the  expenses  of  the  last  sickness  and 
burial,  not  exceeding  $100,  are  paid. 

For  total  disability  there  is  a  payment  of  60  per  cent,  of  the 
average  weekly  wages,  not  more  than  $10  a  week,  for  eight  years. 

For  partial  disability  there  is  a  payment  of  50  per  cent,  of  the 
loss  in  earning  capacity,  subject  to  the  same  limits. 

Controversies  are  to  be  determined  by  the  courts. 

Ohio. 
The  law  which  took  effect  January  1,  1912,  is  elective  and  pro- 
vides for  state  insurance  under  the  supervision  of  a  State  LiabiUty 
Board  of  Awards,  composed  of  three  members.  It  applies  to  all 
employers  having  5  or  more  employees.  There  is  a  waiting  period 
of  seven  days,  with  a  requirement  that  medical  attendance  shall 
be  furnished,  not  to  exceed  $200.  If  the  injury  is  caused  by  the 
wilful  act  of  the  employer  or  his  agent,  or  is  due  to  the  breach  of 

>  See  ante,  p.  77. 


89 

statutory  safety  regulations  or  a  lawful  order  of  a  public  authority, 
the  injured  employee  may  sue  at  law.  There  is  no  specific  dis- 
qualification of  injuries  due  to  the  misconduct  of  the  injured  em- 
ployee. 

There  is  a  State  Liability  Board  of  Awards  of  three  members 
which  is  to  determine  the  classes  of  insurance,  with  the  rates  for 
each  class,  and  administer  the  insurance  fund  which  is  to  be  made 
up  of  premiums  paid  by  employers  who  are  allowed  to  deduct  10 
per  cent,  of  the  amount  from  the  wages  of  their  employees. 

The  amounts  to  be  paid  out  of  the  state  insurance  fund  for 
injuries  or  death  are :  — 

For  death,  the  payment  is  made  of  66f  per  cent,  of  the  average 
weekly  wages  of  the  deceased  for  six  years,  but  not  less  than  $1,500 
nor  more  than  $3,400.  Those  partly  dependent  shall  receive  66f 
per  cent,  of  wages  for  a  period  of  not  more  than  six  years,  with  a 
maximum  Hmit  of  $3,400,  the  length  of  the  period  to  be  deter- 
mined by  the  Board.  If  there  are  no  dependents,  funeral  ex- 
penses, not  in  excess  of  $150,  are  paid. 

For  permanent  total  disability  there  is  a  payment  of  66f  per 
cent,  of  wages,  not  less  than  $5  nor  more  than  $12  a  week,  for 
life. 

For  temporary  or  partial  disability  there  is  a  payment  of  66f 
per  cent,  of  impairment  of  earning  capacity,  not  less  than  $5  nor 
more  than  $12  a  week,  for  a  period  not  more  than  six  years,  and 
not  to  exceed  $3,400. 

Controversies  are  to  be  determined  by  the  Board,  with  a  limited 
appeal  to  the  courts. 

The  Supreme  Court  of  Ohio  upheld  this  law  in  State  v.  Creamer, 
85  Ohio  State,  349. 

Rhode  Island. 
This  act  which  takes  effect  October  1, 1912,  estabhshes  a  system 
of  elective  compensation  applying  to  all  employees  except  those 
engaged  in  domestic  service  or  agriculture.  Increased  liability  is 
imposed  on  employers  with  more  than  5  employees  in  other  em- 
ployments who  do  not  accept  the  act.  All  injuries  are  covered 
except  those  intentionally  inflicted  or  due  to  intoxication.  There 
is  a  waiting  period  of  two  wrecks  during  which  time  medical  at- 
tendance must  be  furnished.    An  employer  may,  with  the  ap- 


90 

proval  of  the  court,  substitute  a  private  arrangement  with  his 
employees  for  the  compensation  provided  by  the  act. 

The  amounts  of  compensation  are:  — 

For  death  there  is  a  payment  of  50  per  cent,  of  the  average 
weekly  wages  of  the  deceased,  not  less  than  $4  nor  more  than  $10 
a  week,  for  three  hundred  weeks  to  dependents,  with  a  propor- 
tionate payment  to  those  partly  dependent.  If  there  are  no  de- 
pendents the  expenses  of  the  last  sickness  and  burial,  not  to  exceed 
$200,  are  paid. 

For  total  disability  there  is  a  payment  of  50  per  cent,  of  the 
average  weekly  wages,  not  less  than  $4  nor  more  than  $10  a  week 
for  five  hundred  weeks. 

For  partial  disability  there  is  a  payment  of  50  per  cent,  of  the 
loss  in  earning  capacity,  not  more  than  $10  a  week,  for  three  hun- 
dred weeks.  There  is  a  list  of  specified  injuries  for  which  a  pay- 
ment additional  to  that  caused  by  loss  of  wages  is  made,  and  the 
amounts  are  prescribed  for  each  of  such  injuries-. 

Controversies  are  to  be  determined  by  the  courts. 

Washington. 

This  law  took  effect  October  1, 1911.  It  is  a  compulsory  law  pro- 
viding for  state  insurance  in  hazardous  industries,  including  work 
done  under  public  authority.  Employers  not  engaged  in  hazard- 
ous industry  may  by  agreement  with  their  employees  accept  the 
act.  The  Industrial  Insurance  Department,  consisting  of  three 
commissioners,  is  created  to  administer  the  act.  The  rate  of 
premium  is  prescribed  by  the  act  for  many  industries,  and  47 
classes  of  insurance  are  created,  each  one  of  which  is  designed  to 
be  self-supporting.  There  is  no  waiting  period  and  no  require- 
ment for  medical  attendance.  There  is  no  compensation  for  any 
injury  which  was  intentionally  self-inflicted.  If  the  injury  be  due 
to  the  lack  of  a  safeguard  required  by  statute  the  employer  is  sub- 
ject to  a  fine,  but  if  the  employee  himself  removed  the  guard  his 
compensation  is  reduced  10  per  cent. 

The  act  differs  from  the  laws  of  all  other  States  in  its  method  of 
computing  compensation.  This  is  not  dependent  on  the  wages 
received  by  the  injured  employee,  but  is  at  the  same  rate  in  all 
cases.    The  amounts  allowed  are :  — 

For  death  there  is  a  payment  of  $20  a  month  for  a  widow  or 


91 

widower.  If  the  widow  remarries  she  receives  a  kimp  sum  of 
$240.  For  each  child  under  sixteen,  $5  a  month  extra  is  paid 
with  a  Hmit  of  $35.  Orphans  under  sixteen  receive  $10  apiece  a 
month,  with  the  same  maximum  limit.  Other  dependents  get 
one  half  of  the  average  amount  received  monthly  from  the  de- 
ceased, with  a  Umit  of  $20. 

If  there  are  no  dependents  funeral  expenses,  not  to  exceed  $75, 
are  paid. 

For  permanent  total  disability  there  is  a  payment  of  $20  a 
month  for  life,  with  an  additional  monthly  payment  of  $5  (limit 
$35)  for  each  child  under  sixteen.  If  the  injured  employee  has  a 
wife  (or  invalid  husband)  but  no  children  he  receives  $25  a  month. 

For  permanent  partial  disability  there  is  a  payment  of  a  lump 
sum  of  not  more  than  $1,500. 

For  temporary  total  disability  the  payments  allowed  for  perma- 
nent total  disability  are  increased  by  one  half  for  the  first  six  months, 
with  the  provision  that  they  shall  not  exceed  60  per  cent,  of  the 
monthly  wages.  This  results  in  a  possible  maximum  pg,yment  of 
$52.50  per  month  for  six  months,  depending  on  the  rate  of  wages  of 
the  injured  person. 

Controversies  are  to  be  settled  by  the  department  with  an 
appeal  to  the  courts. 

The  Supreme  Court  of  Washington  upheld  this  law  in  State  Ex 
Rel  Davis-Smith  Co.  v.  Clausen,  65  Wash.  156, 117  Pac.  Rep.  1101. 

Wisconsin. 

The  law  went  into  effect  September  1, 1911.  It  has  established  a 
system  of  compensation  applying  to  all  public  or  private  employ- 
ers of  labor.  Employers  of  4  or  more  persons  are  subjected  to  an 
increased  liability  if  they  do  not  accept  the  act;  public  employers 
are  compelled  to  adopt  it.  All  injuries  are  covered  which  are 
suffered  by  accident  while  the  employee  is  performing  service 
growing  out  of  and  incidental  to  his  employment  except  those 
caused  by  his  wilful  misconduct. 

No  payment  is  made  for  the  first  week  unless  disability  lasts 
for  more  than  four  weeks,  when  it  is  added  to  the  payment  for 
the  fifth  week.  Medical  attendance  is  to  be  furnished  for  ninety 
days. 

The  amount  of  compensation  provided  by  the  act  is  as  follows:  — 


92 

For  death  there  is  a  weekly  payment  to  dependents  equal  to 
the  wages  of  the  deceased,  which  are  taken  to  be  not  less  than 
$375  nor  more  than  $750  yearly,  the  total  amount  payable  being 
four  times  the  average  annual  wages.  If  there  are  only  partly 
dependent  survivors  the  total  amounts  payable  are  in  proportion 
to  the  extent  of  dependency,  the  weekly  payment  being  the  same 
as  before.  If  there  are  no  dependents,  funeral  expenses,  not  to 
exceed  $100,  are  paid. 

For  total  disability  there  is  a  payment  of  65  per  cent,  of  the 
average  weekly  wages  computed  as  above  described,  and  if  the 
injured  employee  requires  the  assistance  of  a  nurse  after  the  period 
of  ninety  days,  during  which  medical  at  endance  is  provided,  the 
weekly  payment  is  increased  to  100  per  cent,  of  wages. 

For  partial  disability  there  is  a  payment  of  65  per  cent,  of  the 
loss  of  wages.    The  disability  period  may  not  exceed  fifteen  years. 

An  employer  may,  with  the  approval  of  the  Board,  relieve  him- 
self of  liabiUty  to  pay  compensation  to  an  injured  employee  by 
depositing  with  a  trust  company  the  present  value  of  the  unpaid 
compensation  or  by  purchasing  an  annuity  covering  the  same. 

Controversies  are  determined  by  a  board  of  three  persons  which 
has  general  supervision  over  the  operation  of  the  act.  There  is  a 
limited  appeal  to  the  courts.  By  a  later  statute  this  Board  is 
made  the  Industrial  Commission  of  Wisconsin,  and  is  given  other 
duties  also. 

The  Supreme  Court  of  Wisconsin  upheld  this  law  in  Borgnis  v. 
Falk,  147  Wis.  327. 


The  laws  already  passed  have  been  described  above.  Commis- 
sions have  been  appointed,  however,  in  the  following  States  to 
investigate  the  subject  of  employers'  liability  and  workmen's  com- 
pensation and  to  draft  laws:  Colorado,  Connecticut,  Delaware, 
Iowa,  Missouri,  Nebraska,  New  York,  North  Dakota,  Oregon, 
Pennsylvania  and  West  Virginia. 

Furthermore,  provision  has  been  made  in  certain  States  for 
drafting  laws  by  some  State  authority,  e.g.,  the  State  Department 
of  Labor  of  Oklahoma  is  drafting  a  law  for  submission  to  the  next 
Legislature.  In  other  States,  notably  Maine,  Louisiana  and  Texas, 
the  matter  is  under  consideration  by  state  officers  or  unofficial 


93 

bodies,  and  it  is  probable  that  bills  will  be  introduced  at  the  next 
session  of  their  respective  Legislatures. 

In  addition  to  the  foregoing  there  is  a  law  of  the  United  States 
applying  to  certain  government  employees,  and  a  bill  covering 
the  employees  of  railroads  engaged  in  interstate  commerce  is  now 
under  consideration  in  Congress. 

Federal  Law. 

On  May  30,  1908,  Congress  passed  a  law  which  took  effect 
August  1,  1908.  It  granted  compensation  to  persons  employed  by 
the  United  States  as  artisans  or  laborers  in  certain  employments 
for  injuries  sustained  by  them  in  the  course  of  the  employment 
which  were  not  caused  by  their  negligence  or  misconduct.  The 
Secretary  of  Commerce  and  Labor  is  given  authority  to  administer 
and  determine  controversies  arising  under  it.  The  amount  of  com- 
pensation is  limited  to  one  year's  pay.  There  is  a  waiting  period 
of  fifteen  days.  If  the  injured  employee  dies  during  the  year  his 
dependents  receive  the  rest  of  the  compensation  (35  Stat.  556). 

This  law  applied  to  hazardous  employment  under  the  Isthmian 
Commission  and  by  the  act  of  March  4,  1911,  was  extended  to 
cover  all  Isthmian  employees,  and  the  chairman  of  the  commis- 
sion was  given  power  to  administer  it  with  relation  to  them  (36 
Stat.  1452). 

By  the  act  of  March  11,  1912,  the  law  was  extended  to  apply  to 
hazardous  work  under  the  Bureau  of  Mines  or  the  Forestry  Service 
of  the  United  States. 

The  act  of  May  30,  1908,  has  been  construed  by  the  Attorney- 
General  of  the  United  States.  See  27  Op.  A.  G.  (U.  S,),  346;  28 
Op.  254;  29  Op.  415. 

Proposed  Federal  Compensation  Act. 
This  was  drawn  up  by  a  commission  of  which  Senator  Suther- 
land was  chairman.  It  was  transmitted  to  Congress  by  Presi- 
dent Taft  on  February  20,  1912,  and  passed  the  Senate  on  May  6, 
1912.  It  applies  to  railroads  engaged  in  interstate  commerce, 
and  compels  them  to  pay  compensation  to  employees  injured 
while  engaged  in  such  commerce.  Compensation  is  granted  ir- 
respective of  negligence  on  the  part  of  the  railroads  in  all  cases, 


94 

except  where  the  injury  is  caused  by  the  wilful  intention  of  the 
injured  employee  to  cause  injury  to  himself  or  another,  or  is  due 
to  his  intoxication  while  on  duty.  All  other  civil  remedies  are 
abolished. 

There  is  a  waiting  period  of  two  weeks.  Medical  attendance  is 
to  be  furnished  during  this  time  and  afterward  if  required.  The 
expense  of  such  attendance  after  the  period  of  two  weeks  is  not 
to  exceed  $200. 

The  amounts  of  compensation  are  graduated  between  certain 
limits  and  based  on  the  rate  of  wages.  In  case  of  death  compensa- 
tion is  paid  to  the  widow  and  children.  For  total  disability  a 
monthly  payment  is  made  to  the  injured  employee  for  life.  For 
permanent  partial  disability  payments  are  made  according  to  a 
schedule  covering  many  specific  injuries. 

Controversies  are  to  be  settled  by  agreement,  or  by  a  committee 
chosen  by  the  employer  and  employees,  or  if  they  are  not  settled 
in  this  way  they  are  determined  by  the  adjusters  in  each  district 
appointed  by  the  district  courts.  There  is  an  appeal  from  the 
decision  of  the  adjusters  to  the  district  court  sitting  without  a 
jury,  unless  a  jury  is  claimed  within  five  days  and  a  fee  of  $5  is 
deposited.  From  the  decision  of  the  district  courts  there  is  an 
appeal  to  the  higher  courts  on  questions  of  law.  There  is  no 
provision  in  the  act  for  an  administrative  board,  nor  does  it  re- 
quire the  railroads  to  carry  insurance. 


95 


VI.    CONSIDERATION  OF   THE  CONSTITUTIONALITY  OF  A 
COMPULSORY  LAW  FOR  MASSACHUSETTS.^ 

The  subject  of  workmen's  compensation  has  received  legisla- 
tive recognition  in  the  United  States  only  very  recently,  and  the 
experience  of  the  various  States  under  their  laws  will  undoubtedly 
lead  to  changes  in  the  form  of  such  laws.  In  view  of  the  experi- 
ence of  other  countries  in  this  connection,  it  would  be  expected 
that  the  tendency  of  American  legislation  will  be'  toward  the 
passage  of  compulsory  laws.  Several  countries  have  tried  the 
experiment  of  voluntary  laws  and  have  found  them  inefficient. 
This  is  notably  true  of  Italy  and  France.  These  laws  are  not 
taken  advantage  of  by  the  less  intelligent  and  financially  weaker 
employers,  who  are  the  very  ones  who  most  need  the  protection 
of  the  law  for  themselves  and  their  employees. 

It  becomes  important,  therefore,  to  consider  the  power  of  the 
Massachusetts  Legislature  to  change  the  form  of  our  law  and 
make  it  compulsory  instead  of  elective.  The  opinion  of  the 
Supreme  Judicial  Court  given  to  the  Senate  on  July  24,  1911, 
does  not  help  us  in  this  connection,  as  the  court  merely  gave  it 
as  their  opinion  that  the  present  law  (Acts  of  1911,  chapter  751) 
left  it  to  the  option  of  the  employee  whether  he  would  waive  his 
rights  of  action  at  common  law,  and  that  the  provisions  relating 
to  those  employers  and  employees  w^ho  elect  not  to  accept  the 
act  would  not  "constitute  legal  compulsion  or  a  deprivation  of 
fundamental  rights"  (Opinion  of  the  Justices,  209  Mass.  607, 
611). 2  The  justices  did  not  indicate  their  opinion  as  to  the  valid- 
ity of  a  compulsory  law. 

The  reason  why  so  many  of  the  acts  passed  by  the  States  have 
been  elective  in  form,  like  the  Massachusetts  act,  is  because  of 
the  fear  that  other  courts  would  follow  the  decision  of  the  New 
York  Court  of  Appeals  in  Ives  v.  South  Buffalo  Ry.  Co.,  201  N.  Y. 
271,  in  holding  a  compulsory  act  unconstitutional.  The  Legisla- 
ture of  the  State  of  Washington  did  not  fear  this  result,  and  the 
highest  court  of  that  State  has  upheld  their  act  which  provides 
for  compulsory  State  insurance   (State  Ex  Rel.  Davis-Smith  Co. 

'  By  James  A.  Lowell.  2  See  Appendix  B. 


96 

V.  Clausen,  65  Wash.  156,  117  Pac.  Rep.  1101).  The  Federal  Com- 
mission has  reported  a  compulsory  compensation  law  applying  to 
railroads  engaged  in  interstate  commerce,  which  passed  theJJnited 
States  Senate  on  May  6,  1912. 

In  considering  the  constitutional  power  of  the  Massachusetts 
Legislature  to  pass  the  law,  it  is  of  great  importance  to  define  the 
function  of  the  court  in  relation  to  the  high  duty  of  construing  the 
Constitution.  This  is  a  duty  peculiar  to  American  courts,  and  is 
one  involving  more  serious  public  questions  than  those  intrusted 
to  courts  in  any  other  country  (Thayer,  Legal  Essays,  p.  1).  It 
is  only  in  the  very  clearest  cases  that  the  court  should  say  that 
the  Legislature  has  exceeded  its  powers  (Thayer,  Legal  Essays, 
p.  11;  Legal  Tender  Cases,  12  Wall.  457,  531;  Trade-Mark  Cases, 
100  U.  S.  82,  96;  Nicol  d.  Ames,  173  U.  S.  509,  514;  Buttfield  v. 
Stranahan,  192  U.  S.  470,  492;  Chicago,  B.  &  Quincy  R.R.  Co.  v. 
McGuire,  219  U.  S.  549,  569;  see  also  East  Shore  Land  Co.  v. 
Peckham,  33  R.  I.  541),  and  an  able  opinion  of  Judge  Martin  of 
the  Essex  County  Court  of  Common  Pleas  of  New  Jersey  in 
Sexton  V.  Newark  District  Telephone  Co.,  Dec.  4,  1911,  in  which 
he  upheld  the  validity  of  the  workmen's  compensation  act  of 
New  Jersey.  Reported  in  34  N.  J.  Law  Journal,  368-381,  and  35 
N.  J.  Law  Journal,  8-29). 

A  great  constitutional  lawyer  has  thus  expressed  the  true  func- 
tion of  the  court :  — 

That  is  the  standard  of  duty  to  which  the  courts  bring  legislative  Acts; 
that  is  the  test  which  they  apply,  —  not  merely  their  own  judgment  as 
to  constitutionality,  but  their  conclusion  as  to  what  judgment  is  per- 
missible to  another  department  which  the  constitution  has  charged  with 
the  duty  of  making  it.  This  rule  recognizes  that,  having  regard  to  the 
great,  complex,  ever-unfolding  exigencies  of  government,  much  which 
will  seem  unconstitutional  to  one  man,  or  body  of  men,  may  reasonably 
not  seem  so  to  another;  that  the  constitution  often  admits  of  different 
interpretations;  that  there  is  often  a  range  of  choice  and  judgment;  that 
in  such  cases  the  constitution  does  not  impose  upon  the  legislature  any 
one  specific  opinion,  but  leaves  open  this  range  of  choice;  and  that  what- 
ever choice  is  rational  is  constitutional  (Thayer,  Legal  Essays,  p.  21). 

Mr.  Justice  Hughes,  in  delivering  the  unanimous  opinion  of  the 
United  States  Supreme  Court  in  the  McGuire  case,  says :  — 

Whether  the  enactment  is  wise  or  unwise,  whether  it  is  based  on  sound 
economic  theory,  whether  it  is  the  best  means  to  achieve  the  desired 


97 

• 

result,  whether,  in  short,  the  legislative  discretion  within  its  prescribed 
limits  should  be  exercised-  in  a  particular  manner,  are  matters  for  the 
judgment  of  the  legislature,  and  the  earnest  conflict  of  serious  opinion 
does  not  suffice  to  bring  them  within  the  range  of  judicial  cognizance  (219 
U.  S.,  p.  569). 

The  Supreme  Judicial  Court  of  Massachusetts  has  always  taken 
this  position  (Kendall  v.  Kingston,  5  Mass.  524,  534;  Comm.  v. 
Alger,  7  Cush.  53,  102;  Opinion  of  Justices,  8  Gray,  20;  Comm. 
V.  Hamilton  Manufacturing  Co.,  120  Mass.  383;  Opinion  of  the 
Justices,  163  Mass.  589;  Tyler  v.  Court  of  Registration,  175  Mass. 
71;  Comm.  v.  Interstate,  &c.,  Street  Ry.,  187  Mass.  436;  Comm. 
V.  Strauss,  191  Mass.  545). 

The  considerations  which  may  influence  the  Legislature  to  determine 
what  legislation  of  this  character  is  required  by  good  public  policy,  or, 
in  the  words  of  the  Constitution,  what  laws  are  "  for  the  good  and  wel- 
fare of  this  Commonwealth,  and  for  the  government  and  ordering  thereof, 
and  of  the  subjects  of  the  sam'e,"  are  not  for  us  to  weigh,  except  so  far  as 
may  be  necessary  to  determine  whether  the  legislation  proposed  is  repug- 
nant or  contrary  to  the  Constitution  (Opinion  of  the  Justices,  163  Mass. 
589,  595). 

An  able  judge  has  thus  expressed  himself:  — 

I  assent  to  the  opinion  expressed  by  the  other  justices,  upon  the  single 
ground  that  the  act  is  not  so  clearly  unconstitutional,  its  invalidity  so 
free  from  reasonable  doubt,  as  to  make  it  the  duty  of  the  judicial  depart- 
ment, in  view  of  the  vast  interests  involved  in  the  result,  to  declare  it 
void  (Benjamin  F.  Thomas;   Opinion  of  the  Justices,  8  Gray,  20,  21). 

The  wide  powers  possessed  by  the  Legislature  of  Massachusetts 
are  shown  by  the  laws  upheld  by  the  Supreme  Judicial  Court  relat- 
ing to  assignment  of  wages  (McCallum  v.  Simplex  Electrical  Co., 
197  Mass.  388;  Mutual  Loan  Co.  v.  Martell,  200  Mass.  482, 
affirmed  in  Mutual  Loan  Co.  v.  Martell,  222  U.  S.  225;  Dewey  v. 
Richardson,  206  Mass.  430);  commitment  to  overseers  of  the 
poor  of  neglected  children  (Farnham  v.  Pierce,  141  Mass.  203); 
regulation  of  sale  of  liquor  (Comm.  v.  Intoxicating  Liquors,  115 
Mass.  153,  affirmed  in  Beer  Co.  v.  Massachusetts,  97  U.  S.  25; 
Young  V.  Blaisdell,  138  Mass.  344;  Carleton  v.  Rugg,  149  Mass. 
550);  killing  of  infected  animals  (Miller  v.  Horton,  152  Mass. 
540) ;  registration  of  title  to  land  (Tyler  v.  Court  of  Registration, 


98 

175  Mass.  71);  assignment  to  a  railroad  of  an  insurance  policy 
on  property  destroyed  by  fire  for  which  the  railroad  is  liable 
(Lyons  v.  Boston  &  Lowell  Railroad,  181  Mass.  551);  pollution 
of  streams  (Sprague  v.  Dorr,  185  Mass.  10;  Comm.  v.  Sisson,  189 
Mass.  247;  Lyman  v.  Commissioners  on  Fisheries  and  Game,  211 
Mass.  10);  regulating  sales  (J.  P.  Squire  &  Co.  v.  Tellier,  185 
Mass.  18;  Comm.  v.  Strauss,  191  Mass.  545);  mills  acts  (Otis  Co. 
V.  Ludlow  Manuf.  Co.,  186  Mass.  89);  requiring  street  railways 
to  take  school  children  for  half  fare  (Comm.  v.  Interstate,  &c., 
Street  R'y.,  187  Mass.  436;  Comm.  v.  Boston  &  Northern  St.  R'y- 
Co.,  Banker  and  Tradesman,  Aug.  3,  1912,  p.  303;  see  also  Comm. 
V.  Conn.  Valley  St.  R'y.,  196  Mass.  309);  height  of  buildings  (Welch 
V.  Swasey,  193  Mass.  364) ;  regulation  of  insurance  contracts  (New 
York  Life  Insurance  Co.  v.  Hardison,  199  Mass.  190;  Comm.  v. 
Nutting,  175  Mass.  154,  affirmed  in  Nutting  v.  Massachusetts,  183 
U.  S.  553);  determining  standard  of  milk  (Comm.  v.  Wheeler,  205 
Mass.  384);  compulsory  vaccination  (Comm.  v.  Pear,  183  Mass. 
242,  affirmed  in  Jacobson  v.  Massachusetts,  197  U.  S.  11);  sale  of 
oleomargarine  (Comm.  i\  Huntley,  156  Mass.  236,  affirmed  in 
Plumley  v.  Massachusetts,  155  U.  S.  461);  regulation  of  loans  of 
pawnbroker  (Comm.  v.  Danziger,  176  Mass.  290);  fifty-six  hours 
of  labor  per  week  for  minors  and  women  (Comm.  d.  Riley,  210 
Mass.  387);  employment  of  boy  under  fourteen  forbidden  (Berdos 
V.  Tremont  &  Suffolk  Mills,  209  Mass.  489). 

Would  the  Massachusetts  court  be  likely  to  follow  the  New 
York  case,  or  would  it  hold  that  the  Legislature  has  power  to 
pass  a  compulsory  law?  There  is  one  way  in  which  the  decision 
in  New  York  may  be  distinguished,  although  it  was  not  mentioned 
by  that  court.  The  law  under  consideration  in  the  Ives  case  pro- 
vided that  the  workman  after  his  injury  could  elect  either  to  sue 
at  common  law  or  to  accept  the  benefits  of  the  new  act.  There 
is  ground  for  the  argument  that  a  law  like  the  New  York  act  which 
applied  only  to  certain  hazardous  industries  and  imposed  a  double 
burden  on  them  deprived  such  employers  of  the  equal  protection 
of  the  laws  (see  Cunningham  v.  Northwestern  Improvement  Co., 
44  Mont.  180,  221).  Whether  this  be  a  valid  distinction  or 
not  it  is  extremely  doubtful  whether  the  Massachusetts  court 
would  follow  that  decision,  The  attitude  of  the  Massachusetts 
court  towards  the  acts  of  the  Legislature  is  entirely  different  from 


99 

that  of  the  New  York  court.  The  latter  has  declared  unconsti- 
tutional several  laws  which  would  undoubtedly  be  held  good  in 
Massachusetts.  It  was  unable  to  see  any  provisions  relating  to 
health  in  a  statute  forbidding  the  manufacturing  of  cigars  in  tene- 
ment houses  and  held  the  law  invalid  (Matter  of  Jacobs,  98  N.  Y. 
98).  It  declared  a  law  unconstitutional  which  prohibited  the 
employment  of  women  after  9  p.m.  and  before  6  a.m.  (People  v. 
Williams,  189  N.  Y.  131).  A  similar  law  is  in  force  in  Massachu- 
setts and  is  undoubtedly  valid  (Acts  of  1909,  chapter  514,  section 
51;  see  Comm.  d.  Riley,  210  Mass.  387).  It  has  been  construed  by 
the  Massachusetts  Attorney-General  (1  Op.  A.  G.  (Mass.)  209). 
The  New  York  court  denied  the  validity  of  a  statute  limiting  the 
hours  of  labor  on  pubUc  work  (People  v.  Orange  County  Road 
Cons.  Co.,  175  N.  Y.  84).  A  similar  law  was  upheld  by  the  Su- 
preme Court  of  the  United  States  (Atkin  v.  Kansas,  191  U.  S.  207; 
see  also  2  Op.  A.  G.  (Mass.)  497,  and  Opinion  of  the  Justices,  208 
Mass.  619). 

In  People  v.  Williams,  above  cited.  Earl,  J.,  said:  — 

The  tendency  of  Legislatures,  in  the  form  of  regulatory  measures,  to 
interfere  with  the  lawful  pursuits  of  citizens  is  becoming  a  marked  one 
in  this  country,  and  it  behooves  the  courts,  firmly  and  fearlessly,  to  inter- 
pose the  barriers  of  their  judgments,  when  invoked  to  protect  against 
legislative  acts,  plainly,  transcending  the  powers  conferred  by  the  Con- 
stitution upon  the  legislative  body  (189  N.  Y.,  at  p.  135). 

This  is  a  false  view  of  the  province  of  the  court  (Thayer,  Legal 
Essays,  p.  28),  and  is  entirely  different  from  the  views  of  the  Su- 
preme Judicial  Court  of  Massachusetts  already  cited. 

The  New  York  court  has  adopted  an  erroneous  view  of  its 
function,  and  in  the  instances  above  cited  it  has  unduly  restricted 
the  power  of  the  Legislature  to  pass  laws  relating  to  the  hours  of 
labor  and  similar  measures.  Public  attention  has  been  drawn  to 
this  fact  recently  by  one  of  the  foremost  men  of  the  country  in 
his  public  speeches,  which  have  been  heard  by  large  numbers  of 
persons  and  read  by  many  thousands  more. 

The  New  York  court,  taking  this  extended  view  of  its  powers, 
attacked  the  problem  before  it  in  a  very  narrow  spirit.  The 
decision  rests  on  the  hypothesis  that  at  the  common  law  a  person 
could  not  be  made  liable  for  the  result  of  an  accident  unless  some 


100 

fault  could  be  attributed  to  him.  This  is  a  mistake.  There  are 
many  instances  in  the  common  law  of  liability  without  fault:  a 
husband  is  liable  at  common  law  for  the  torts  of  his  wife  (Austin 
V.  Wilson,  4  Cush.  273;  see  McCarty  v.  DeBest,  120  Mass.  89). 
A  ship  is  liable  for  the  cure  of  a  sailor  (the  Osceola,  189  U.  S.  158). 
A  person  who  causes  a  nuisance  is  liable.  Many  instances  of  this 
might  be  cited,  but  the  bell-ringing  case  will  be  sufficient  (Davis 
V.  Sawyer,  133  Mass.  289;  see  Sawyer  v.  Davis,  136  Mass.  239). 
A  landowner  is  bound  at  his  peril  to  keep  filthy  water  from 
percolating  into  his  neighbor's  well  (Ball  v.  Nye,  99  Mass.  582). 
Shipley  v.  Fifty  Associates  (101  Mass.  251;  106  Mass.  194)  is  an 
instance  of  the  rule  laid  down  by  Mr.  Justice  Blackburn  in  his 
celebrated  opinion  in  Fletcher  v.  Rylands  (L.  R.  1  Ex.  265,  279) 
that  "the  person  who  for  his  own  purposes  brings  on  his  land  and 
collects  and  keeps  there  anything  likely  to  do  mischief  if  it  escapes, 
must  keep  it  in  at  his  peril."  In  Massachusetts  an  action  for 
deceit  will  lie,  without  proof  of  fraudulent  intent,  if  the  defendant 
makes  a  statement  of  fact  as  of  his  own  knowledge  (Chatham  Fur- 
nace Co.  V.  Moffatt,  147  Mass.  403;  Weeks  v.  Currier,  172  Mass. 
53).  The  doctrine  is  carried  so  far  that  evidence  that  the  defend- 
ant believed  the  statement  is  excluded  (Adams  v.  Collins,  196 
Mass.  422).  This  is  an  extreme  instance  of  liability  without  fault. 
A  principal  is  liable  for  the  fraudulent  representation  of  his  agent 
though  made  without  his  knowledge  (Haskell  v.  Starbird,  152 
Mass.  117).  A  person  is  liable  for  the  spread  of  fire  (Hart  v. 
Western  Railroad,  13  Met.  99;  St.  Louis  &  San  Francisco  R'y.  *'• 
Mathews,  165  U.  S.  1). 

The  responsibilities  of  common  carriers  and  innkeepers  are  also 
familiar  instances,  and  many  others  might  be  given  of  liability 
without  fault.  The  last  two  cases  are  well-known  examples  of 
responsibility  developed  by  the  courts  on  grounds  of  public  ex- 
pediency. A  master  is  liable  for  injury  caused  by  his  servant  to 
a  stranger,  under  the  doctrine  of  respondeat  superior  (Howe  v. 
Newmarch,  12  Allen,  49).  The  courts  themselves  have  de- 
veloped this  doctrine  without  the  aid  of  the  Legislature.  Why 
may  not  the  Legislature  adopt  the  same  principles  with  relation 
to  the  whole  subject  of  master  and  servant?  It  is  said  that  this 
is  taking  property  without  due  process  of  law.    But  if  a  man  in 


101  :'r^i:ji\H/: 

Massachusetts  may  be  held  Uable  in  an  action  of  deceit  without 
fault,  why  may  not  the  Legislature  say  that  he  shall  be  liable  to 
his  servant  without  fault?  A  law,  the  details  of  which  have  been 
evolved  by  the  courts  on  their  own  ideas  of  public  policy,  may 
surely  be  changed  and  enlarged  by  the  Legislature  on  grounds  of 
public  policy  as  to  which,  as  Mr.  Justice  Hughes  says,  it  is  the 
arbiter  (Chicago,  B.  &  Quincy  R.R.  Co.  v.  McGuire,  219  U.  S.  549, 
565). 

The  Supreme  Judicial  Court  has  always  held  that  the  relation 
between  master  and  servant  is  a  subject  peculiarly  within  the 
province  of  the  Legislature  (Comm.  v.  Hamilton  Mfg.  Co.,  120 
Mass.  383;  Opinion  of  the  Justices,  163  Mass.  589;  Comm.  v. 
Riley,  210  Mass.  387).  In  the  first  case  Lord,  J.,  speaking  of  a 
statute  restricting  the  hours  of  labor  of  women  says :  — 

There  can  be  no  doubt  that  such  legislation  may  be  maintained  either 
as  a  health  or  police  regulation,  if  it  were  necessary  to  resort  to  either  of 
those  sources  for  power.  This  principle  has  been  so  frequently  recog- 
nized in  this  Commonwealth  that  reference  to  the  decisions  is  unneces- 
sary. 

He  says  further  that  it  is  a  matter  "so  clearly  within  the  power 
of  the  Legislature,  that  it  becomes  unnecessary  to  inquire  whether 
it  is  a  matter  of  grievance  of  which  this  defendant  has  the  right 
to  complain." 

The  only  case  where  the  court  has  decided  that  the  Legislature 
has  exceeded  its  constitutional  power  in  this  respect  is  Common- 
wealth v.  Perry  (155  Mass.  117).  This  case  is  explained  in  the 
Opinion  of  the  Justices,  above  cited,  as  a  legislative  attempt  to 
compel  payment  for  poor  work.  The  statute  has  been  amended 
and  is  now  on  the  statute  book  (Acts  of  1909,  chapter  514,  sec- 
tion 114.  See  Comm.  v-  Lancaster  Mills,  Banker  and  Tradesman, 
July  6,  1912,  p.  36). 

It  has  been  said  that  the  relation  of  husband  and  wife  is  within 
the  protection  of  the  law  when  other  relations-  are  not.  There 
are,  however,  numerous  instances  of  the  relation  of  master  and 
servant  being  regulated  by  statutes,  many  of  which  have  been 
upheld  by  the  courts.  A  very  eminent  authority  has  said  that 
in  England  the  relation  between  employer  and  employee  in  regard 


\\il/ly  102 

to  compensation  for  accidents  has  become  a  matter  of  status  and 
not  of  contract  (Dicey,  Law  and  Opinion  in  England,  p.  283). 

The  admiralty  rules  as  to  the  liability  of  a  vessel  for  the  cure  of 
its  sailors  is  said  to  be  an  exception,  and  is  distinguished  by  the 
New  York  court  (Ives  case,  201  N.  Y.,  at  p.  311).  The  Legisla- 
ture would  seem  to  have  power  to  say  that  in  modern  industry 
an  employee  may  be  treated  like  a  sailor,  as  a  "  co-adventurer  with 
the  master,"  as  the  rule  of  maritime  law  is  expressed  by  the  New 
York  court  (Ives  case,  ib.). 

It  is  not  the  province  of  the  court,  however  much  it  may  dis- 
approve the  modern  theory  of  legislation,  to  say  that  the  Legis- 
lature cannot  discard  all  theories  of  individualism  and  provide  for 
paternalism.  Mr.  Justice  Holmes,  in  his  dissenting  opinion  in 
Lochner  v.  New  York  (198  U.  S.  45,  75),  says:  — 

This  case  is  decided  upon  an  economic  theory  which  a  large  part  of  the 
country  does  not  entertain.  If  it  were  a  question  whether  I  agreed  with 
that  theory,  I  should  desire  to  study  it  further  and  long  before  making 
up  my  mind.  But  I  do  not  conceive  that  to  be  my  duty,  because  I 
strongly  believe  that  my  agreement  or  disagreement  has  nothing  to  do 
with  the  right  of  a  majority  to  embody  their  opinions  in  law.  .  .  .  The 
Fourteenth  Amendment  does  not  enact  Mr.  Herbert  Spencer's  Social 
Statics.  .  .  .  But  a  constitution  is  not  intended  to  embody  a  particular 
economic  theory,  whether  of  paternalism  and  the  organic  relation  of  the 
citizen  to  the  State  or  of  laissez  faire. 

There  are  numerous  instances  of  this  on  the  statute  books. 
Chapter  514  of  the  Acts  of  1909,  codifying  the  Massachusetts 
labor  laws,  contains  many  such  statutes. 

But  even  if  the  New  York  court  be  correct  in  its  hypothesis  that 
liability  was  not  in  general  imposed  by  the  common  law  without 
fault  (see  Holmes,  Common  Law,  chapter  3),  it  forgets  that  one  of 
the  great  powers  of  the  Legislature  is  to  change  the  rules  of  the 
common  law  where  they  are  not  conducive  to  justice  and  the 
public  welfare  (Munn  v.  lUinois,  94  U.  S.  113,  134;  Hurtado  v. 
California,  110  U.  S.  516,  529;  Holden  v.  Hardy,  169  U.  S.  366, 
385;  Brown  v.  New  Jersey,  175  U.  S.  172,  175;  Twining  v.  New 
Jersey,  211  U.  S.  78,  101;  Second  Employers'  Liability  Cases, 
223  U.  S.  1,  50;  Mass.  Const.,  chap.  VI,  art.  VI;  Jacquins  v. 
Comm.,  9  Cush.  279,  282;  Comm.  v.  Williams,  6  Gray,  1,3;  Opin- 


103 

ion  of  the  Justices,  163  Mass.  589;  Tyler  v.  Court  of  Registration, 
175  Mass.  71). 

In  view  of  the  many  instances  aheady  cited,  where  liabihty  was 
imposed  at  common  law  without  fault,  it  cannot  be  said  that  the 
Legislature  is  doing  an  arbitrary  thing  in  changing  the  law  in  this 
way.  The  attitude  of  the 'Massachusetts  court  towards  legisla- 
tion of  this  character  is  such  that  it  may  very  well  be  predicted 
that  the  court  would  uphold  a  compulsory  law  imposing  liability 
on  employers.  In  such  a  law  there  would  have  to  be  some  pro- 
vision for  a  trial  by  jury,  as  by  Article  XV  of  Part  I  of  the  Massa- 
chusetts Constitution  this  cannot  be  taken  away.  The  proposed 
Federal  law  provides  for  such  a  trial,  and  it  would  be  sufficient  if 
it  were  allowed  on  appeal  from  the  decision  of  the  Industrial 
Accident  Board  (Hapgood  v.  Doherty,  8  Gray,  373;  O'Loughlin 
V.  Bird,  128  Mass.  600). 

There  remains  the  question  whether  the  law  could  require  the 
employers  to  insure.  If  the  Legislature  has  the  power  to  impose 
a  liability  on  the  master  for  the  injuries  incidental  to  the  industry 
it  is  for  the  reason  that  the  public  welfare  requires  that  the  per- 
sons injured  shall  not  be  allowed  to  become  dependent  on  public 
or  private  charity,  and  that  the  cost  of  this  may  be  placed  on  the 
industry.  If,  in  the  opinion  of  the  Legislature,  it  is  necessary  to 
go  further  and  provide  that  every  employer  must  protect  his  em- 
ployees by  insurance,  as  otherwise  the  danger  of  their  becoming 
thus  dependent  would  be  too  great,  it  would  seem  to  be  competent 
for  it  to  do  so.  This  is  not  saying  that  the  Legislature  might  con- 
stitutionally require  all  employers  to  insure  in  a  company  operated 
by  the  State.  Whatever  may  be  thought  of  the  advisability  of 
such  a  scheme,  it  is  doubtful  whether  this  could  be  done  in  Massa- 
chusetts without  change  in  the  Constitution  (Lowell  v.  Boston, 
111  Mass.  454;  Opinion  of  the  Justices,  155  Mass.  598;  Opinion 
of  the  Justices,  204  Mass.  607;  Opinion  of  the  Justices,  211  Mass. 
624). 

If  a  compulsory  law  were  upheld  by  the  Massachusetts  court 
there  would  then  be  an  opportunity  for  determining,  by  appeal  to 
the  Supreme  Court  of  the  United  States,  whether  such  a  law  were 
in  conflict  with  the  provisions  of  the  Constitution  of  the  United 
States.  It  is  the  opinion  of  the  Federal  Commission  that  a  com- 
pulsory law  would  be  upheld  by  that  court.     The  commission  is 


104 

composed  "of  four  able  lawj'ers,  —  Senators  Sutherland  and  Cham- 
berlain and  Representatives  Brantley  and  Moon.  President  Taft 
in  the  message  presenting  the  report  of  the  commission  to  Con- 
gress states  his  opinion  that  the  law  is  valid  (62nd.  Cong.  2d  ses- 
sion, Senate  Document  No.  338;  see  also  the  cases  in  New  Jersey, 
Ohio,  Wisconsin,  and  Washington  which  upheld  the  laws  of  those 
States,  relating  to  workmen's  compensation  or  insurance,  where 
the  subject  is  discussed;  Sexton  v.  Newark  Tel.  Co.,  decided  Dec. 
4,  1911,  by  Judge  Martin  of  the  Essex  County  Court  of  Common 
Pleas  of  New  Jersey,  reported  in  34  N.  J.  Law  Journal,  368-381, 
and  35  N.  J.  Law  Rep.  8-29;  State  v.  Creamer,  85  Ohio  State,  349, 
97  N.  E.  Rep.  602;  Borgnis  v.  Falk  Co.,  147  Wis.  327,  133  N.  W. 
Rep.  209;  State  Ex  Rel.  Davis-Smith  Co.  v.  Clausen,  65  Wash.  156, 
117  Pac.  Rep.  1101;  see  also  Cunningham  v.  Northwestern  Improve- 
ment Co.,  44  Mont.  180,  119  Pac.  Rep.  554). 

Many  of  the  cases  which  have  been  decided  in  the  United  States 
Supreme  Court  arose  under  the  clause  of  the  Fourteenth  Amend- 
ment relating  to  equal  protection  of  the  laws,  and  the  court  has 
decided  that  the  classification  of  certain  dangerous  employments 
in  regard  to  hours  of  labor  or  liability  for  injuries  was  constitu- 
tional (Missouri  Railway  Co.  v.  Mackey,  127  U.  S.  205;  Minne- 
apolis &  St,  Louis  Ry.  Co.  v.  Herrick,  Ih.  210;  Holden  v.  Hardy, 
169  U.  S.  366;  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13; 
Chicago,  R.  I.,  &c.,  Ry.  Co.  v.  Zernecke,  183  U.  S.  582;  St.  Louis 
Cons.  Coal  Co.  v.  IlUnois,  185  U.  S.  203;  Minnesota  Iron  Co.  v. 
Kline,  199  U.  S.  593;  Schlemmer  v.  Buffalo,  Rochester,  &c.,  Ry., 
205  U.  S.  1;  Wilmington  Mining  Co.  v.  Fulton,  205  U.  S.  60; 
Muller  V.  Oregon,  208  U.  S.  412;  McLean  v.  Arkansas,  211  U.  S. 
539;  Louisville  &  Nashville  R.R.  ^.  Melton,  218  U.  S.  36;  Chicago, 
B.  &  Quincy  R.R.  Co.  v.  McGuire,  219  U.  S.  549;  United  States 
V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  220  U.  S.  37;  C,  B.  &  Q.  Ry.  v. 
United  States,  Ih.  559;  Bait.  &  Ohio  R.R.  v.  Interstate  Commerce 
Comm.,  221  U.  S.  612;  Southern  Ry.  Co.  v.  United  States,  222 
U.  S.  20;  Second  Employers'  Liability  Cases,  223  U.  S.  1).  This 
clause  will  not  be  involved  in  the  consideration  of  a  compulsory 
law  of  the  same  scope  as  the  present  statute,  because  all  employ- 
ers are  treated  alike,  and  there  is  no  question  of  depriving  a  per- 
son of  the  equal  protection  of  the  laws.  The  fact  that  such  a  law 
omits  domestic  service  and  agriculture  does  not  invalidate  the 


105 

law  (Opinion  of  the  Justices,  209  Mass.  607;  Rowley  v.  Ellis,  197 
Mass.  391;  St.  Louis  Cons.  Coal  Co.  v.  Illinois,  185  U.  S.  203; 
see  also  the  cases  cited  supra). 

The  vital  question  which  the  United  States  Supreme  Court  will 
be  called  upon  to  decide  will  be  whether  the  statute  deprives  the 
emploj^er  of  his  property  without  due  process  of  law,  because  it 
greatly  enlarges  his  liability  irrespective  of  fault.  Numerous  de- 
cisions have  been  rendered  which  tend  to  show  that  the  court 
will  uphold  the  law.  In  the  Mackey  case  a  Kansas  statute  abol- 
ishing the  fellow-servant  rule  as  applied  to  railroads  was  upheld 
and  Mr.  Justice  Field  said :  — 

The  supposed  hardship  and  injustice  consist  in  imputing  liability  to 
the  company,  where  no  personal  wrong  or  negligence  is  chargeable  to  it 
or  to  its  directors.  But  the  same  hardship  and  injustice,  if  there  be  any, 
exist  when  the  company,  without  any  wrong  or  negligence  on  its  part,  is 
charged  for  injuries  to  passengers.  Whatever  care  and  precaution  may 
be  taken  in  conducting  its  business  or  in  selecting  its  servants,  if  injury 
happen  to  the  passengers  from  the  negligence  or  incompetency  of  the 
servants,  responsibility  therefor  at  once  attaches  to  it.  The  utmost  care 
on  its  part  will  not  relieve  it  from  liability,  if  the  passenger  injured  be 
himself  free  from  contributory  negligence.  The  law  of  1874  extends  this 
doctrine  and  fixes  a  like  liability  upon  railroad  companies,  where  injuries 
are  subsequently  suffered  by  employes,  though  it  may  be  by  the  negli- 
gence or  incompetency  of  a  fellow  servant  in  the  same  general  employ- 
ment and  acting  under  the  same  immediate  direction.  That  its  passage 
was  within  the  competency  of  the  legislature  we  have  no  doubt  (127 
U.  S.,  at  p.  208). 

The  common-law  liability  for  injuries  to  persons  not  occupying 
the  relations  of  master  and  servant  may  be  curtailed  or  enlarged. 
An  instance  of  curtailment  is  seen  in  Martin  v.  Pittsburg  &  Lake 
Erie  R.R.  (203  U.  S.  284),  where  a  Pennsylvania  statute  was 
upheld,  which  provided  that  express  messengers  and  others  work- 
ing about  the  cars  or  buildings  of  a  railroad  should  have  no  greater 
rights  of  recovery  than  the  employees  of  the  railroad.  An  in- 
stance of  the  enlargement  of  the  liability  is  shown  in  the  Zernecke 
case  (183  U.  S.  582),  where  a  Nebraska  statute  imposing  an  abso- 
lute liability  for  injuries  to  passengers  on  a  railroad  was  upheld. 
Mr.  Justice  McKenna  says,  at  page  586 :  — 

Our  jurisprudence  affords  examples  of  legal  liability  without  fault,  and 
the  deprivation  of  property  without  fault  being  attributable  to  its  owner. 


106 

The  law  of  deodands  was  such  an  example.  The  personification  of  the 
ship  in  admiralty  law  is  another.  Other  examples  are  afforded  in  the 
liabiUty  of  the  husband  for  the  torts  of  the  wife  —  the  liability  of  a  master 
for  the  acts  of  his  servants. 

Many  laws  affecting  the  relation  of  master  and  servant  have 
been  upheld.  Railroad  fellow  servants  (Missouri  Railway  Co.  v. 
Mackey,  127  U.  S.  205);  railroad  bridge  carpenter  (Chicago,  &c., 
Railroad  Co.  v.  Pontius,  157  U.  S.  209);  eight  hours  in  mines 
(Holden  v.  Hardy,  169  U.  S.  366);  Indiana  employers  liability 
act  (Tullis  V.  Lake  Erie  &  Western  Railroad,  175  U.  S.  348);  store 
orders  (Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13);  State  in- 
spection of  mines  with  more  than  5  men  at  expense  of  owner  (St. 
Louis  Cons.  Coal  Co.  v.  Illinois,  185  U.  S.  203) ;  fellow  servants  on 
railroad,  contracts  limiting  liability  bad  (Minnesota  Iron  Co.  v. 
Kline,  199  U.  S.  593);  certified  mine  examiner  (Wilmington  Min- 
ing Co.  V.  Fulton,  205  U.  S.  60) ;  ten  hours  for  women  (Muller  v. 
Oregon,  208  U.  S.  412) ;  wages  accruing  paid  before  screening  coal 
in  mines  with  over  10  men  (McLean  v.  Arkansas,  211  LT.  S.  539); 
fellow  servant  law  of  railroad  applying  to  men  not  operating  trains 
(Louisville  &  Nashville  R.R.  v.  Melton,  218  U.  S.  36);  fellow  ser- 
vant law  of  railroad  applying  to  all  employees  (Mobile,  J.  &  K. 
C.  R.R.  V.  Turnipseed,  219  U.  S.  35);  release  on  receiving  benefit 
declared  void  by  statute  (Chicago,  B.  &  Quincy  R.R.  Co.  v.  Mc- 
Guire,  lb.  549);  Federal  statute  held  bad  as  covering  intrastate 
commerce  (The  Employers'  Liability  Cases,  207  U.  S.  463) ;  same 
statute  valid  for  District  of  Columbia  (El  Paso  &  N.  E.  Ry.  v. 
Gutierrez,  215  U.  S.  87);  eight-hour  law  for  public  employees 
(Atkin  V.  Kansas,  191  U.  S.  207);  hours  of  labor  of  interstate  rail- 
road employees  (United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co., 
220  U.  S.  37) ;  Safety  Appliance  Act  imposing  an  absolute  duty 
(C,  B.  &  Q.  Ry.  'V.  United  States,  lb.  559) ;  extension  of  liability 
of  railroads  for  interstate  employees  (Second  Employers'  Liability 
Cases,  223  U.  S.  1) ;  Nebraska  statute  making  contributory  negli- 
gence merely  an  element  in  assessing  damages  (Missouri  Pac.  Ry. 
Co,«.  Castle,  224  U.  S.  541). 

The  only  instance  in  which  the  power  of  a  State  Legislature 
to  pass  such  laws  lias  been  denied  was  in  Lochner  v.  New  York 
(198  U.  S.  45),  and  in  this  case  the  general  power  of  the  Legislature 


107 

over  the  situation  is  recognized.    Mr.  Justice  Peckham  in  deliver- 
ing the  opinion  says :  — 

This  is  not  a  question  of  substituting  the  judgment  of  the  court  for  that 
of  the  legislature.  If  the  act  be  within  the  power  of  the  State  it  is  valid, 
although  the  judgment  of  the  court  might  be  totally  opposed  to  the  en- 
actment of  such  a  law  (198  U.  S.,  p.  56). 

The  Supreme  Court  of  the  United  States  takes  an  extremely 
wide  view  of  the  power  of  the  Legislature.  This  is  shown  by  the 
recent  cases  of  Noble  State  Bank  v.  Haskell  (219  U.  S.  104),  Shal- 
lenberger  v.  First  State  Bank  (76.  114),  and  Assaria  State  Bank  v. 
Dolley  {lb.  121),  involving  the  constitutionality  of  acts  in  Okla- 
homa and  Kansas  guaranteeing  the  deposits  in  banks.  The  Okla- 
homa law,  which  was  involved  in  the  first  two  cases,  required 
every  State  bank  to  pay  1  per  cent,  (afterwards  raised  to  5  per 
cent.)  of  its  deposits  into  a  guaranty  fund  which  was  used  to  guar- 
antee the  solvency  of  all  State  banks.  The  court  was  unanimous 
in  upholding  the  law.  Mr.  Justice  Holmes,  in  delivering  the 
opinion,  said:  — 

In  answering  that  question  we  must  be  cautious  about  pressing  the 
broad  words  of  the  Fourteenth  Amendment  to  a  drily  logical  extreme. 
Many  laws  which  it  would  be  vain  to  ask  the  court  to  overthrow  could  be 
shown,  easily  enough,  to  transgress  a  scholastic  interpretation  of  one  or 
another  of  the  great  guarantees  in  the  Bill  of  Rights.  They  more  or  less 
limit  the  liberty  of  the  individual  or  they  diminish  property  to  a  certain 
extent.  We  have  few  scientifically  certain  criteria  of  legislation,  and  as 
it  often  is  difficult  to  mark  the  line  where  what  is  called  the  police  power 
of  the  States  is  limited  by  the  Constitution  of  the  United  States,  judges 
should  be  slow  to  read  into  the  latter  a  nolumus  mutare  as  against  the 
law-making  power.  .  .  . 

It  may  be  said  in  a  general  way  that  the  police  power  extends  to  all 
the  great  public  needs.  Camfield  v.  United  States,  167  U.  S.  518.  It  may 
be  put  forth  in  aid  of  what  is  sanctioned  by  usage,  or  held  by  the  pre- 
vailing morality  or  strong  and  preponderant  opinion  to  be  greatly  and 
immediately  necessary  to  the  pubhc  welfare  (219  U.  S.,  pp.  110,  111). 

On  a  rehearing  Mr.  Justice  Holmes  says :  — 

We  fully  understand  the  practical  importance  of  the  question  and  the 
very  powerful  argument  that  can  be  made  against  the  wisdom  of  the 
legislation,  but  on  that  point  we  have  nothing  to  say,  as  it  is  not  our  con- 


108 

cern.  .  .  .  The  analysis  of  the  police  power,  whether  correct  or  not,  was 
intended  to  indicate  an  interpretation  of  what  has  taken  place  in  the  past 
not  to  give  a  new  or  wider  scope  to  the  power  (Noble  State  Bank  v. 
Haskell,  219  U.  S.  575,  580) 

In  view  of  the  attitude  of  the  Supreme  Court  of  the  United 
States  toward  the  powers  of  the  State  Legislatures,  and  having 
regard  to  the  many  instances  of  changes  in  the  law  relating  to 
employment  which  have  received  its  sanction,  it  would  not  be 
rash  to  prophesy  that  a  compulsory  law  w-ould  be  upheld  by  that 
tribunal. 


109 


VII.  —  ACCIDENT  STATISTICS. 

The  function  of  statistics  in  social  studies  is  to  afford  a  definite 
quantitative  measure  of  forces  and  tendencies,  concerning  which 
there  are  conflicting  opinions  because  of  the  wide  fluctuations 
occurring  in  the  narrow  field  of  the  individual  observer's  experi- 
ence or  knowledge.  In  regard  to  industrial  accidents,  with  which 
this  report  is  concerned,  the  lack  of  definite  and  rehable  informa- 
tion is  particularly  marked.  Every  one  who  is  at  all  acquainted 
with  modern  industrial  operations  knows  that  disabling  accidents 
are  frequent  and  often  distressing  in  their  results,  but  in  the  ab- 
sence of  carefully  compiled  statistics  no  real  measurement  of  this 
element  in  the  cost  of  production  is  possible.  In  the  following 
pages  an  effort  is  made  to  supply  the  data  for  this  purpose,  so  far 
as  they  could  be  obtained  in  an  investigation  covering  a  period  of 
only  one  year. 

As  set  forth  in  a  previous  portion  of  this  report,  the  commission 
was  unable  to  secure  from  any  State  department  or  bureau  figures 
which  would  afford  an  adequate  idea  of  the  number  and  serious- 
ness of  industrial  accidents  in  Massachusetts.  It  recommended 
to  the  Legislature  that  it  be  given  authority  to  continue  the  in- 
vestigation which  it  had  undertaken  for  a  brief  time,  with  the 
voluntary  co-operation  of  a  few  employers,  and  that  every  em- 
ployer be  required  to  report  all  accidents  to  employees  arising 
out  of  or  in  the  course  of  their  employment.  The  Legislature 
responded  to  the  recommendation  of  the  commission  by  enacting 
chapter  66  of  the  Resolves  of  1911.  The  purpose  of  this  resolve 
was  to  inaugurate  a  system  of  reports  which  should  be  continued 
and  which  should  ultimately  afford  adequate  and  reliable  data 
regarding  the  industrial  accidents  occurring  in  the  common- 
wealth. This  resolve  provided  for  reports  only  up  to  July  1,  1911. 
Chapter  110  of  the  Resolves  of  1911  extended  this  period  to  July 
1,  1912,  after  which  date,  under  the  terms  of  the  workmen's  com- 
pensation act,  the  work  of  securing  these  reports  was  to  be  con- 
tinued by  the  Industrial  Accident  Board.  It  was,  therefore,  the 
apparent  intention  of  the  Legislature  that  the  work  begun  by  the 
commission  should  be  continued  without  interruption,  in  order 


110 

that  a  broad  statistical  basis  might  be  provided  for  future  studies 
in  this  field. 

These  resolves  and  the  compensation  act  afford  ample  au- 
thority for  a  thorough  study  of  industrial  accidents.  The  report 
blanks  ^  sent  out  by  the  commission  covered  practically  every  line 
of  inquiry  necessary  fpr  a  complete  analysis  of  such  accidents, 
and  the  reports  received  contain  in  the  aggregate  a  great  amount 
of  valuable  social  and  economic  data.  It  was  not  within  the 
scope  of  the  work  of  the  commission,  however,  to  utilize  all  of  this 
information.  It  had  been  impressed  from  the  beginning  of  its 
studies  with  the  importance  of  accident  prevention,  but  it  was 
not  instructed  to  undertake  investigations  or  to  make  recom- 
mendations in  regard  to  this  matter.  It,  therefore,  has  not 
attempted  to  tabulate  the  accidents  reported  to  it  by  causes, 
ages,  or  nature  of  the  injury,  all  of  which  have  a  direct  and*  im- 
portant significance  in  connection  with  methods  and  means  of 
accident  prevention.  It  gathered  the  data  along  these  lines  with 
the  hope  and  expectation  that  they  would  be  utilized  by  the 
Industrial  Accident  Board,  whose  functions  are  broader. 

While  the  commission  received  reports  covering  a  period  of 
fourteen  months,  it  has  tabulated  only  those  for  one  complete 
year.  The  reports  for  May  and  June,  1912,  have  been  filed  with 
the  Industrial  Accident  Board,  to  be  completed  and  tabulated  in 
connection  with  the  reports  made  directly  to  that  Board  on  and 
after  July  1,  1912. 

In  its  instructions^  to  employers  the  commission  called  for  a 
report  on  every  accident  that  was  sufficiently  serious  to  cause  any 
loss  of  time  or  to  require  the  services  of  a  physician.  Even  with 
this  limitation  a  large  number  of  trivial  injuries  were  reported. 
It  would  have  saved  a  great  deal  of  labor  and  expense  if  only 
those  accidents  resulting  in  more  than  one  day's  disability  had 
been  called  for  under  the  resolve. 

The  following  tables  have  been  prepared  primarily  for  the 
purpose  of  affording  a  basis  for  the  calculation  of  the  cost  of  com- 
pensation under  the  new  law.  They  will  not  serve  as  a  safe  guide 
for  making  rates  in  insuring  individual  employers,  though  they 
may  be  helpful  in  that  direction. 

'  See  Appendix  E  for  forms  of  schedules. 

•  Sep  Appendix  E  for  iastructions  relative  to  reports. 


Ill 


Table  I.  —  Accidents  reported  to  the  Commission  on  Compensation  for 
Industrial  Accidents,  during  Twelve  Months,  May  1,  1911-April  SO, 
1912. 


Period. 


1911 
May,     .... 

June 

July,    .... 
August, 
September,  . 
October, 
November,  . 
December,  . 

1912, 

January, 
February,    . 
March, 

April,  .... 
Total,    . 


Number  of  Accidents. 


Total. 


2,239 
2,500 
2,524 
3,330 
3,177 
3,344 
3,259 
3,015 

3,211 
2,860 
2,846 
2,616 


Fatal. 


34,921 


14 
14 
35 
24 
24 
30 
30 
27 

35 
16 
21 
15 


285 


NON-PATAL. 


Total. 


2,225 
2,486 
2,489 
3,306 
3,153 
3,314 
3,229 
2,988 

3,176 
2,844 
2,825 
2,601 


34,636 


One  Day 
or  Less. 


1,146 
1,166 
1,158 
1,510 
1,326 
1,428 
1,365 
1,268 

1,250 
1,164 
1,184 
1,156 


15,121 


Over  One 
Day. 


1,079 
1,320 
1,331 
1,796 
1,827 
1,886 
1,864 
1,720 

1,926 
1,680 
1,641 
1,445 


19,515 


In  Table  I  the  accidents  occurring  during  twelve  months.  May 
1, 1911,  to  April  30,  1912,  as  reported  to  the  commission,  are  given 
by  months  and  are  classified  according  to  their  seriousness.  A 
considerable  fluctuation  is  apparent  in  the  total  numbers  reported 
month  by  month,  the  largest  number,  3,344,  in  October,  being 
almost  50  per  cent,  greater  than  the  smallest  number,  2,239,  in 
May.  Whether  the  smaller  numbers  reported  during  the  summer 
months  were  due  to  slack  work,  a  less  degree  of  susceptibility  to 
accident  in  warm  weather,  or  merely  to  the  fact  that  at  the  begin- 
ning of  the  period  there  was  not  the  same  diligence  exercised  by 
employers  in  reporting,  it  is  impossible  to  determine  at  this  time. 
If  there  is  a  regular  seasonal  fluctuation,  whether  due  to  climatic 
or  business  conditions,  it  can  only  be  determined  after  the  figures 
for  a  period  of  years  are  available. 

There  is  a  wide  variation  in  the  number  of  fatal  accidents  in  the 


112 

different  months  of  the  year.  The  highest  number,  35,  in  July 
and  January,  is  150  per  cent,  greater  than  the  lowest  number,  14, 
in  May  and. June.  This  fluctuation  has  no  special  significance, 
however,  as  the  numbers  involved  are  too  small  to  indicate  under- 
lying tendencies.  Data  for  a  considerable  period  of  years  or  for 
several  States  might,  however,  show  that  there  is  a  definite  sea- 
sonal variation  in  the  number  of  fatalities  in  industry,  as  the 
figures  in  this  table  seem  to  indicate. 

It'is  noteworthy  that  in  May,  the  first  month  for  which  reports 
were  received,  more  than  51  per  cent,  of  the  accidents  reported 
did  not  result  in  over  one  day's  disability,  while  the  average  for 
the  year  was  43  per  cent.  The  falling  off  in  the  proportionate 
number  of  trivial  accidents  reported  was  probably  largely  due  to 
the  instructions  of  the  commission,  which  were  not  issued  until  the 
work  had  been  in  progress  for  some  time  and  were  not  received 
by  employers  during  that  month. 

In  the  following  tables  the  statistics  are  given  by  industries. 
Several  plans  of  classification  were  considered,  but  it  was  finally 
decided  to  adopt  the  German  system  because  it  was  neither  too 
general  nor  too  minutely  detailed,  and  because  it  enables  com- 
parisons to  be  made  with  the  statistics  of  that  country  which 
cover  a  long  period  of  years  and  which  are  doubtless  the  best  in 
the  world.  In  the  following  outline  of  the  German  classification 
the  subgroups  have  been  omitted  except  where  it  was  necessary 
to  give  a  few  of  the  representative  ones  to  indicate  the  range  of 
industries  covered.  The  numbers  indicate  different  industrial 
accident  insurance  associations  of  which  there  are  66  in  the  Ger- 
man Empire.  In  most  cases  there  is  only  one  association  in  each 
branch  of  industry,  and  this  covers  the  entire  country,  but  in  some 
of  the  more  important  branches  of  industry  or  trade  several 
associations  are  formed  which  cover  political  or  other  territorial 
divisions  of  the  Empire. 

1.  Mining:  — 

Coal  mining. 

Ore  mining. 

Smelting. 

Salt  mining. 

Briquette  factories. 

Tar  distilleries. 

Mineral  oil  and  paraffin  factories. 


113 

2.  Quarrying:  — 

Stone  quarries,  open  shaft. 
Stone  quarries,  underground. 
Drilling  and  petroleum  wells. 
Lime  burning  and  slaking. 
Marble  polishing  and  cutting. 

3.  Light  machinery  and  electro-technical  works:  — 

Electrical  works :  electric  light  and  power  stations. 
Electro-technical  works. 
Small- arms  factories. 
Watch  factories. 

Wire  springs  and  spring  steel  factories. 
Gas  meters  and  gas  appliances. 
4-11,  66.  Iron  and  steel:  — 

Machine  construction,  including  mechanical   workshops    and   iron 

foundries. 
Boiler  making. 
Shipbuilding. 
Iron  and  steel  goods. 
Wire  manufacturing. 

Heating,  lighting,  ventilating,  and  drainage  plants. 
Motor  factories. 
12,  13.  Metal  working:  — 

Metal  goods  manufacturing. 
Metal  casting  and  stamping. 
Working  in  precious  metals. 

14.  Musical  instruments. 

15.  Glass:  — 

Manufacture  and  working  of  hollow  and  pressed  glass  (includipg 

cut  glass). 
Manufacture  and  finishing  of  table,  window,  and  blown  plate  glass. 
Manufacture  of  common  bottles  of  all  descriptions. 

16.  Pottery:  — 

Manufacture  of  earthenware. 
Manufacture  of  fine  ceramics. 

17.  Brickmaking:  — 

Brickmaking  and  clay  digging. 

Potteries,  stove  making,  tile  factories,  etc. 

18.  Chemicals :  — 

Wholesale  chemical  manufacturing. 

Manufacture  of  artificial  organic  dyestuffs. 

Manufacture  of  other  coloring  stuffs. 

Manufacture  of  explosives. 

Manufacture  of  soaps,  candles,  perfumeries,  ethereal  oils. 

19.  Gas  and  water  works. 

Water  works. 
Gas  works. 
Electric  plants. 


114 

20-27.  Textiles. 

28.  Papermaking :  — 

Paper  factories. 
Straw  stock  factories. 
Wood  grinding. 

29.  Paper  products :  — 

Lithograph,  metal  plate  and  color  printing. 
Book  binding  and  paper-box  factories. 
Manufacture  of  papier  mach6. 

30.  Leather :  — 

Manufacture  of  leather. 
Leather  cloth  and  oil  cloth  manufacturing. 
Various  leather  working,  including  saddlery  and  upholstery. 
Manufacture  of  linoleum. 

Tanning  mills  and  manufacture  of  tanning  extracts. 
31-34.  Wood:  — 

Wood  mills  and  storing. 

Manufacture  of  finished  wood  manufactures,  including  desks. 
Coopers. 
Basket  makers. 

Wood  turning  and  car\ang,  also  cork  cutting. 
Wood  gilding  or  other  fine  decorating. 

Carriage  and  wagon  making,   construction  of  common  wooden 
wagons. 

35.  Milling:  — 

Mills  in  which  grain  is  ground. 
Sawmills. 

36.  Foodstuffs. 

Bakeries  and  pastry  cooking. 

Cocoa  and  chocolate  manufacturing. 

Fish  salting  and  pickling. 

Manufacture  of  sparkUng  and  fruit  wines,  wine  making. 

Ice  manufacture,  storage,  and  distribution. 

37.  Sugar. 

38.  Dairy,  distillery,  and  starch:  — 

Dairies,  butter  and  cheese  manufacturing,  condensed  milk. 
DistilUng  of  spirits,  Uqueur  and  essence  manufacturing,  spirit  refin- 
ing, and  compressed  yeast  manufacturing. 
Vinegar  manufacturing. 

39.  Brewing  and  malting. 

40.  Tobacco. 
4L  Clothing:  — 

Sewing  estabUshments. 
Underwear  manufacturing. 
Shoe  manufacturing. 
Hat  making. 


115 

I 

42.  Chimney  sweeping. 
43-54.  Building  trades. 

55.  Book  printers. 

56.  Private  railroads. 

57.  Street  railroads  and  small  lines. 

58.  Mercantile :  — 

Dry  goods  and  millinery  dealers. 

Building  materials,  metal  warehouses,  lumber  yards. 

Beer,  wine,  distilled  liqueurs,  mineral  waters  and  ice,  hotel  business. 

Bucter  and  cheese,  groceries,  tobacco  and  cigar  dealers,  drugs  and 

chemicals. 
Machinery  and  automobile  dealers. 

59.  Teaming. 

60-62.  Inside  shipping:  — 

Steamboats,  operation  of. 
River  and  canal  vessels,  operation  of. 
Ferrying. 

Dredging  and  scow  operation. 

Loading  and  unloading  of  goods,  transportation,  coal  wharves  and 
yards. 

63.  Marine:  — 

Merchant  vessels,  sail  and  steam. 
Deep  sea  fishermen. 
Tugs,  pilots. 

64.  Underground  construction:  — 

PubUc  works  by  municipal  and  other  pubHc  bodies,   iron  work, 

canal,  dock  and  other  waterworks,  fortifications. 
Drainage,  grading,  excavating,  and  other  earth  and  building  works. 

65.  Meat:  — 

Butchers. 

Slaughterhouses . 

Beef  extracts,  preserved  meats,  canned  soups,  etc. 

It  will  be  observed  that  there  are  a  few  industries  in  the  German 
classification  not  included  in  the  tables  in  this  report.  This  is 
due  to  the  fact  that  such  industries  as  mining  and  chimney  sweep- 
ing do  not  exist  or  are  too  insignificant  in  this  State  to  be  taken 
account  of.  With  a  few  minor  exceptions  it  was  possible  to 
assign  the  classes  of  manufacturing  industries  contained  in  the 
"Statistics  of  Manufactures"  of  the  Massachusetts  Bureau  of 
Statistics  to  the  groups  in  this  scheme  of  classification  Avithout 
splitting  them  up.  This  made  it  possible  to  use  the  United  States 
census  figures  in  ascertaining  the  number  of  employees  in  the 
State  in  the  several  lines  of  industry. 


116 


1 

CO 


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119 

Table  11  shows  the  number  of  estabhshments  and  employees 
in  the  State,  the  number  and  percentage  of  estabhshments  which 
reported  accidents  to  the  commission  during  the  year,  and  the 
number  and  percentage  of  employees  covered  by  such  reports. 
It  also  gives  the  number  of  fatal  and  nonfatal  accidents  by  sex. 
So  far  as  possible  United  States  census  figures  are  used  in  this 
table  for  the  number  of  establishments  in  the  State  and  for  the 
number  of  employees.  These  figures  were  taken  from  the  "Sta- 
tistics of  Manufactures,"  for  the  year  1909,  of  the  Massachusetts 
Bureau  of  Statistics.  This  report  of  the  Bureau  is  based  upon 
data  obtained  from  the  thirteenth  census  (1910),^  which  the  Census 
Bureau  has  not  yet  published.  In  a  few  lines  of  industry  no  com- 
plete data  as  to  number  of  establishments  and  employees  in  the 
State  could  be  obtained.  This  is  true  of  nonmanufacturing 
industries  like  the  building  trades,  mercantile  business,  hotels, 
restaurants,  etc.  Wherever  such  industries  do  not  constitute 
a  group  by  themselves,  the  manufacturing  and  nonmanufacturing 
figures  are  given  separately  in  this  and  subsequent  tables,  so  that 
it  is  possible  to  calculate  percentages  to  show  what  proportion  of 
the  manufacturing  establishments  of  the  State  filed  reports  with 
the  commission  during  the  year. 

It  should  be  noted  that  the  number  of  accidents  given  in  this 
table  is  not  the  same  as  that  in  Table  I.  This  is  due  to  the  omis- 
sion from  this  and  subsequent  tables  of  9  accidents  occurring  in 
agriculture  and  forestry.  Only  6  establishments,  employing  in 
the  aggregate  208  persons,  made  reports  to  the  commission,  and  it 
seemed  unwise  to  let  these  reports  stand  as  representative  of  so 
large  an  industry. 

In  comparing  the  figures  under  the  head  of  reports  to  the  com- 
mission two  things  should  be  borne  in  mind.  In  the  first  place, 
the  United  States  census  includes  all  establishments  having  an 
annual  product  worth  .$500  or  more;  secondly,  allowance  must 
be  made  for  the  growth  of  the  industries  during  the  two  years 
that  have  elapsed  since  the  census  was  taken.  The  first  probably 
accounts  for  the  exceptionally  small  percentage  of  estabhshments 
in  certain  groups  of  industries  which  reported  accidents  to  the 
commission.     The  latter  accounts  for  the  fact  that  in  several  lines 

'  lu  the  thirteenth  census  of  the  United  States  (1910),  the  census  of  manufactures  covered 
the  year  ending  January  1,  1910. 


120 

the  number  of  employees  covered  by  reports  to  the  commission 
equal  or  exceed  the  numbers  found  in  the  census,  even  though 
only  a  part  of  the  establishments  are  included. 

It  will  be  observed,  also,  that  while  only  13.71  per  cent,  of  the 
manufacturing  establishments  of  the  State  reported  accidents  to 
the  commission  during  the  year,  the  number  of  employees  covered 
by  such  reports  was  459,202,  or  80.23  per  cent,  of  the  total  number 
emploj'ed  in  those  lines  of  industry  in  1909.  Even  when  allow- 
ance is  made  for  the  growth  of  the  industry  these  figures  may  be 
regarded  as  fully  representative.  The  same  is  true  of  most  of  the 
groups  in  the  table.  It  is  apparent  that  it  was  the  small  estab- 
lishment that  failed  to  report,  for  in  those  lines  where  large  plants 
are  the  rule  the  figures  are  most  nearly  complete. 

It  should  not  be  assumed  that  a  large  number  of  employers 
failed  to  report  their  accidents  to  the  commission  because  reports 
were  received  from  only  1,506  manufacturing  establishments  out 
of  10,988  in  the  State,  or  13.71  per  cent.  It  is  likely  that  some 
employers  did  neglect  to  make  reports  through  ignorance  of  the 
law,  or  for  other  reasons,  but  it  is  probable  that  in  the  majority 
of  instances  no  accidents  occurred  in  the  numerous  small  plants 
from  which  no  reports  were  received.  It  was  the  common  testi- 
mony of  many  small  employers  who  came  before  the  commission 
at  various  times  that  they  had  never  had  an  accident  or  had  had 
only  one  in  several  years. 

One  striking  feature  of  Table  II  is  the  small  number  of  acci- 
dents to  females.  Only  one  was  killed  during  the  year  as  com- 
pared with  281  males  who  met  death  at  their  work,  and  they 
furnished  only  6.7  per  cent,  of  the  nonfatal  accidents.  The 
schedules  used  by  the  commission  did  not  call  for  the  number  of 
employees  by  sex,  consequently  it  is  impossible  to  determine 
what  proportion  of  those  employed  in  the  establishments  reporting 
accidents  were  females. 

As  bearing  on  this  question,  however,  the  distribution  of  em- 
ployees in  manufactures  by  sex  has  some  significance.  According 
to  the  "Statistics  of  Manufactures"  for  1909  the  total  number  of 
clerks  and  wage-earners  was  620,414,  of  whom  196,327,  or  32  per 
cent.,  were  females.  This  would  probably  be  too  high  a  pro- 
portion for  all  the  industries  reporting  accidents  to  the  commission, 
for  men  are  employed  almost  exclusively  on  the  railroads,  street 


121 

railways  and  in  the  building  trades,  though  this  would  be  offset 
to  some  extent  by  the  preponderance  of  female  employees  in  mer- 
cantile establishments,  particularly  the  department  stores,  and 
in  laundries,  restaurants,  etc. 

Table  II  shows  that  34,912  accidents  occurred  among  627,- 
206  employees  who  were  in  the  service  of  the  establishments 
reporting  to  the  commission.  This  gives  a  rate  of  55.66  acci- 
dents per  1,000  employees  per  year.  The  death  rate  was  0.45  per 
1,000  employees.  This  is  a  very  low  death  rate  as  compared 
with  that  of  the  railroads  and  the  coal  mines  of  the  United  States, 
and  it  should  be  remembered  that  Massachusetts  railroads  are 
included  in  these  tables.  If  these  figures  may  be  relied  upon  as 
typical  of  the  hazard  of  the  industries  of  the  State,  it  appears 
that  they  are  much  safer  than  those  of  certain  foreign  countries. 
The  death  rate  in  German  industries  has  averaged  about  0.80  per 
1,000  for  a  considerable  period  of  years,  while  in  Austria  it  is 
about  0.70  per  1,000. 

Table  II  also  shows  that  the  largest  number  of  accidents 
occurred  in  the  iron  and  steel  industry,  though  railroads  had  the 
largest  number  of  fatalities.  Leaving  out  of  account  those  groups 
where  the  figures  are  so  small  as  not  to  afford  a  safe  basis  for 
estimating  rates,  the  nonmanufacturing  subgroup  under  light 
machinery  and  electro-technical  works  (including  line-men,  etc.) 
shows  the  highest  death  rate,  4.60  per  1,000  employed.  It  should 
be  noted  that  this  rate  is  more  than  ten  times  as  great  as  that 
for  all  industries  taken  together.  Railroads  and  the  building 
trades  are  apparently  about  equally  hazardous,  the  death  rates 
being  1.71  and  1.73  per  1,000  respectively. 

The  iron  and  steel  group  has  the  highest  total  accident  rate, 
namely,  156.25  per  1,000.  In  spite  of  the  fact  that  boots  and 
shoes  supplied  the  only  instance  of  female  mortality,  this  branch 
of  industry  is  especially  free  from  hazard.  The  death  rate  was 
only  0.08  per  1,000,  and  there  were  only  16.55  of  all  accidents 
per  1,000  employees.  This  is  a  little  less  than  one  half  of  the 
rate  for  textiles  (33.98),  not  quite  one  third  of  that  for  all  indus- 
tries (55.66),  and  only  a  little  over  one  tenth  of  that  for  iron  and 
steel  (156.25). 

It  is  probable  that  these  rates  are  only  approximately  correct. 
If  all  accidents  have  been  reported  the  rate  should  be  based  on 


122 


the  total  number  of  employees  in  the  State.  This  would  materially 
reduce  the  rates  given  above  in  some  instances,  but  it  is  not  safe 
to  assume  that  every  accident  was  reported,  and  as  stated  above  it 
is  not  possible  to  ascertain  how  many  employees  there  are  in  all 
of  the  industries  in  the  State. 

In  the  smaller  groups  in  Table  II,  representing  less  than  10,000 
employees  each,  it  is  probably  not  safe  to  rely  upon  the  accident 
rates  computed  on  the  figures  set  forth  in  this  table,  certainly  not 
in  the  case  of  fatal  accidents. 

In  Table  III  the  experience  of  three  countries  in  the  matter  of 
fatal  accidents  for  a  period  of  ten  years  is  given :  — 

Table  III.  —  Fatal  Accidents  in  European  Countries.^ 


Yeab 

Austria. 

Germany 

(Public 

Employments). 

Germany 

(Industrial 

Accident 

Associations). 

Italy 

(National 

Accident 

Insurance 

Institution). 

Num- 
ber. 

Per 
1,000. 

Num- 
ber. 

Per 

1,000. 

Num- 
ber. 

Per 
1,000. 

Num- 
ber. 

Per 
1,000. 

1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 
1907, 
1908, 

1,044 

1,003 

995 

901 

909 

1,037 

1,111 

1,089 

1,189 

.73 
.68 
.67 
.61 
.60 
.64 
.68 
.63 
.65 

619 
679 
629 
598 
623 
628 
696 
700 
749 
806 

1.13 
1.20 
1.07 
1.02 
1.01 
1.02 
1,07 
1.04 
1.02 
1.10 

4,897 
5,226 
5,121 
4,705 
4,854 
5.176 
5,325 
5,569 
6,223 
6,070 

.83 
.85 
.83 
.73 
.72 
.72 
.72 
.72 
.77 
.76 

158 
159 
298 
339 
399 
353 
307 
334 

.88 
.78 
1.21 
1.00 
.99 
.95 
.82 
.82 

>  Based  upon  figures  contained  in  the  twenty-fourth  annual  report  of  the  United  States 
Commissioner  of  Labor. 


In  Table  III,  as  well  as  Table  IV,  which  follows,  the  basis 
upon  which  the  rates  are  figured  varies  somewhat.  In  Austria 
and  Germany  it  is  the  number  of  full  time  (three-hundred-day) 
workers  insured  in  the  various  associations,  while  in  Italy  it  is 
the  average  number  of  employees  covered  by  insurance  in  the 
National  Insurance  Institution.  In  no  case  do  the  figures  include 
all  accidents  occurring  in  the  industries  of  the  country.  In  Ger- 
many the  agricultural  accident  associations  are  omitted,  and  in 


123 

Austria  mining  is  not  included,  and  only  those  employees  in  agri- 
culture and  forestry  who  are  engaged  in  the  use  of  machinery  and 
exposed  to  the  risks  arising  therefrom  are  covered  by  insurance. 
In  the  case  of  Italy  only  about  two  fifths  of  the  employees  cov- 
ered by  insurance  are  included  in  the  National  Accident  Insurance 
Institution  figures. 

Table  III  indicates  that  it  is  not  safe  to  base  estimates  upon 
one  year's  experience  where  the  numbers  involved  are  small. 
The  highest  rate  in  the  Italian  column  (1.21)  is  55  per  cent, 
greater  than  the  lowest  rate  (.78),  which  happened  to  be  that 
for  the  previous  year.  The  differences  between  highest  and  lowest 
rates  in  the  other  columns,  Germany  (public  employments),  19 
per  cent.,  Austria,  20  per  cent.,  and  Germany  (industrial  accident 
associations),  17  per  cent.,  lessen  with  increasing  numbers.  One 
significant  feature  of  this  table  should  be  noted.  In  no  case  is 
there  a  tendency  to  an  increase  in  the  accident  rate.  On  the 
contrary  the  rate  is  lower  in  every  case  at  the  end  of  the  period 
than  it  is  at  the  beginning.  The  high  fatal  accident  rate  in  public 
employments  in  Germany  is  accounted  for  by  the  fact  that  most 
of  the  enterprises  carried  on  under  government  control,  such  as 
the  railroads,  public  building  operations,  and  inland  navigation 
and  construction  of  waterways  and  harbors,  are  of  a  more  haz- 
ardous nature  than  manufacturing,  which  constitutes  the  greater 
part  of  the  industries  covered  by  the  industrial  accident  associa- 
tions. 

Attention  has  been  called  to  the  fact  that  the  accident  rates  in 
Table  III  are  all  much  higher  than  that  shown  for  all  industries 
in  Massachusetts  (0.45  per  1,000  employed).  This  is  probably 
due  to  the  fact  that  the  industries  of  this  State  are  so  largely  of  a 
nonhazardous  character.  It  is  well  known  that  the  textiles, 
boots  and  shoes,  and  other  light  factory  industries,  while  they 
entail  a  considerable  number  of  minor  injuries,  do  not  cause  many 
deaths.  This  is  clearly  shown  in  Table  IX,  which  gives  the  ac- 
cident rates  in  Massachusetts  by  industries. 

In  Table  IV  statistics  for  the  same  countries  are  given,  cov- 
ering all  accidents,  fatal  as  well  as  nonfatal;  but  as  stated  above 
they  do  not  afford  a  complete  record  of  the  accident  experience 
of  anv  of  the  countries. 


124 


Table  IV.  —  Accidents,  Fatal  and  Nonfatal,  in  European  Countries. 


Year 

Austria. 

Germany 

(Public 

Employments). 

Germany 

(Industrial 

Accident 

Associations). 

Italy 

(National 

Accident 

Insurance 

Institution). 

Num- 
ber. 

Per 
1,000. 

Num- 
ber. 

Per 
1,000. 

Num- 
ber. 

Per 

1,000. 

Num- 
ber. 

Per 

1,000. 

1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 
1907, 
1908, 

22,666 
23,039 
24,134 
25,313 
25,459 
27,612 
28,787 
31,469 
33,492 

15.8 
15.8 
16.3 
17.1 
16.8 
17.2 
17.5 
18.2 
18.4 

3,485 
3,597 
.    3,713 
3,824 
4,066 
4,015 
4,270 
4,362 
4,537 
4,758 

7.1 
7.1 
7.2 
7.4 
7.7 
7.2 
7.4 
7.2 
6.9 
7.1 

49,175 
51,697 
55,525 
57,244 
60,550 
65,205 
68,360 
71,227 
75,370 
74,581 

8.5 
8.6 
9.3 
9.2 
9.2 
9.5 
9.6 
9.5 
9.6 
9.5 

11,472 
15,725 
22,674 
33,954 
45,260 
52,969 
54,226 
65,242 

64.3 

77.7 
92.4 
98.3 
107.4 
143.1 
145.2 
160.6 

'  Based  upon  statistics  contained  in  the  twenty-fourth  annual  report  of  the  United  States 
Commissioner  of  Labor. 


The  chief  reason  for  the  widely  divergent  rates  per  1,000  em- 
ployees in  Table  IV,  is  that  the  statistics  are  gathered  on  dif- 
ferent bases.  In  Austria  only  those  accidents  which  result  in 
death  or  more  than  four  weeks'  disability  are  counted.  The 
German  figures  include  fatal  cases  and  those  resulting  in  more 
than  thirteen  weeks'  disability,  while  in  Italy  all  fatal  accidents 
and  those  involving  more  than  five  days'  disability  are  given  in 
the  table.  It  is  impossible  to  compare  the  experience  of  these 
three  countries,  therefore,  except  in  the  matter  of  tendency.  The 
gross  numbers  signify  nothing,  for  in  all  cases  there  has  been  a 
considerable  increase  in  the  number  of  employees,  due  to  growing 
population  and  the  expansion  of  the  industries  of  each  country, 
and,  particularly  in  the  case  of  Italy,  to  the  increase  in  the  pro- 
portion of  the  employees  of  the  country  covered  by  insurance  in 
the  National  Accident  Insurance  Institution.  With  the  excep- 
tion of  public  employments  in  Germany,  in  which  the  rate  remains 
practically  constant,  there  is  a  marked  increase  in  the  accident 
rate.  This  is  particularly  noticeable  in  the  case  of  Italy,  where 
it  is  150  per  cent,  higher  in  1906  than  it  was  in  1899.    The  most 


125 


satisfactory  explanation  that  could  be  found  for  this  remarkable 
increase  was  that  it  is  due  to  malingering.  In  view  of  the  fact 
that  there  has  been  no  increase  in  the  death  rate,  which  would 
indicate  more  hazardous  working  conditions,  this  explanation 
seems  reasonable. 

It  is  worthy  of  note  in  this  connection  that  the  experience  of 
those  countries  for  which  detailed  information  is  available  indi- 
cates a  decline,  or  at  least  no  increase,  in  the  number  of  accidents 
resulting  in  serious  disability.  Complete  statistics  could  not  be 
obtained  except  for  two  countries,  but  such  data  as  there  are  for 
several  other  foreign  countries  seem  to  indicate  a  similar  tend- 
ency. Table  V,  which  illustrates  this  point,  is  based  upon  fig- 
ures contained  in  the  twenty-fourth  annual  report  of  the  United 
States  Commissioner  of  Labor:  — 

Table  V.  —  Showing  Number  of  Accidents  -per  1,000  Employees  in  Austria 
and  Germany  which  resulted  in  Permanent  Disability,  1897-1908. 


Year.                                          Austria.  > 

Germany. 

Total. 

Partial. 

1897 

3.79 

.12 

4.11 

1898 

3.78 

.10 

4.09 

1899 

4.17 

.10 

4.12 

1900 

4.08 

.10 

4.11 

1901 

4.28 

.10 

4.36 

1902 

3.99 

.10 

4.28 

1903 

3.50 

.09 

4.19 

1904 

4.03 

.09 

4.20 

1905 

_i 

.08 

4.11 

1906 

_• 

.08 

4.01 

1907 

-• 

.07 

3.85 

1908 

_j 

.07 

3.70 

'  Total  and  partial  disability  combined. 

2  Included  with  accidents  resulting  in  temporary  disability  after  1904. 


Various  explanations  have  been  advanced  to  account  for  the 
tendencies  shown  in  Table  V.  Dr.  Henry  J.  Harris,  of  the  United 
States  Bureau  of  Labor,  who  has  made  a  careful  study  of  this 
matter,  in  an  article  in  the  Quarterly  Publications  of  the  American 


126 

Statistical  Association/  quotes  with  approval  the  conclusions 
reached  by  a  departmental  committee  on  accidents  in  places  under 
the  factory  and  workshops  acts  of  Great  Britain,  which  was 
appointed  in  1908  and  reported  its  findings  in  1911.     He  says:  — 

As  to  whether  this  increase  in  the  accident  rate  represents  an  actual 
increase  in  the  number  of  accidents  or  is  merely  the  result  of  more  careful 
reporting,  the  committee  comes  to  the  conclusion  that  the  latter  iS  the 
principal  cause.    The  reasons  given  are  the  following:  — 

First,  while  the  total  number  of  accidents  reported  has  tended  to  in- 
crease, the  number  of  fatal  and  serious  accidents,  which  are  always  more 
carefully  reported  than  the  minor  accidents,  has  tended  to  remain  sta- 
tionary. "It  is  possible  that  minor  accidents  may  have  increased  at  a 
greater  rate  than  serious  accidents,  and  in  the  present  state  of  our  knowl- 
edge it  is  impossible  to  speak  with  certainty  on  the  point.  No  reason, 
however,  for  so  large  a  difference  between  the  rates  of  increase  in  serious 
and  in  minor  accidents  has  been  given,  and  the  committee  infer  that 
most  of  the  difference  is  due  to  the  fuller  reporting  of  minor  accidents." 

Second,  the  factory  inspectors  all  stated  that  reporting  had  been  de- 
fective in  the  past,  and  that  improvements  in  this  respect  had  been  in- 
stituted. 

Third,  the  compensation  act  of  1906  had  led  to  more  complete  report- 
ing. 

Fourth,  the  amendment  of  the  accident  reporting  law  in  1906  had  also 
led  to  more  complete  reporting.  The  general  conclusion  of  the  committee 
(page  21)  is  that  "the  increase  of  reported  accidents  up  to  1907  was  due 
almost  entirely  to  increased  reporting." 

The  committee  also  takes  up  the  question  as  to  whether  industries  as 
at  present  conducted  have  a  greater  degree  of  risk  —  are  more  hazardous  — 
than  formerly.    The  elements  considered  in  the  report  are  the  following:  — 

First,  increased  speed  and  pressure  of  work  —  "On  the  whole,  we  are 
of  opinion  that  there  is  increased  speed  and  pressure  in  a  large  number  of 
industries,  and  this  is  probably  a  cause  operating  to  produce  an  appre- 
ciable increase  in  the  accident  risk." 

Second,  increased  use  of  machinery  "considered  as  an  isolated  cause,  is 
one  of  the  causes  operating  to  increase  the  accident  risk.  The  counter 
operation,  however,  due  to  improvements  in  machines  and  in  guards 
must  not  be  forgotten." 

Third,  the  workmen's  compensation  act.  "The  committee  conclude  that 
the  workmen's  compensation  act  has  reduced  the  accident  risk  by  direct- 
ing the  attention  of  employers  to  the  occurrence  of  accidents  and  the 
importance  of  preventing  them,  but  has  led  to  some  increase  in  the  number 
of  reported  accidents." 

Fourth,  improvements  in  guarding  machinery.     "An  appreciable  de- 

'  Quarterly  Publications,  New  Series,  No.  97,  Boston,  March,  1912. 


127 

crease  in  the  accident  risk  has  occurred  as  a  result  of  improvement  in  the 
guarding  of  machinery." 

Fifth,  casual  or  intermittent  labor.  "We  have  no  evidence  that  this  is 
a  cause  of  increased  accident  risk." 

Sixth,  unskilled  labor.  "Generally  ...  we  havt  little  evidence  of  an 
increase  in  the  use  of  unskilled  labor  on  dangerous  processes  except  as 
regards  the  employment  of  young  persons." 

Seventh,  employment  of  young  persons.  "So  far  as  the  employment 
of  young  persons  has  increased,  the  risk  which  naturally  accompanies 
the  employment  of  immature  workers  has  also  increased,  but  the  commit- 
tee do  not  think  that  this  cause  accounts  for  any  large  proportion  of  the 
total  increase  in  the  accident  risk." 

Eighth,  blood  poisoning.  "There  is  evidence  of  an  increase  of  cases  of 
incapacitation  from  this  cause  for  which  increase  no  satisfactory  reason 
has  been  suggested  to  us." 

The  general  conclusion  of  the  committee  is  that  in  British  industries 
the  accident  risk  for  the  ten  years  1897  to  1907  has  probably  remained 
"almost  constant,"  and  that  any  increase  due  to  the  greater  use  of 
machinery  and  greater  pressure  on  the  workmen  has  been  counteracted 
by  improved  inspection  and  the  greater  care  on  the  part  of  the  em- 
ployers resulting  from  the  provisions  of  the  workmen's  compensation 
act.  The  committee  asserts  that  "there  has  been  little,  if  any,  increase 
in  the  accident  risk  during  recent  years." 

Dr.  Harris  states  his  own  conclusions  based  upon  an  exhaustive 
study  of  European  experience  as  follows :  — 

In  Germany,  Austria  and  Great  Britain  the  serious  accidents,  namely, 
those  causing  death  or  permanent  disablement,  show  a  tendency  to  de- 
crease. In  Germany  and  Austria  the  accidents  which  cause  disablements 
from  which  the  workman  eventually  recovers  show  a  tendency  to  increase, 
there  being  no  information  on  this  point  for  Great  Britain.  In  Germany 
there  has  been  an  elaborate  persistent  campaign  for  at  least  a  decade  for 
the  purpose  of  reducing  the  accident  risk,  and  in  this  period  the  number 
of  accidents  of  the  type  which  may  be  called  "minor"  has  steadily  in- 
creased. The  progress  in  the  movement  for  reducing  the  risk  of  industry, 
therefore,  has  resulted  in  distinctly  reducing  the  risk  of  death  or  perma- 
nent disablement,  but  has  not  yet  diminished  the  risk  of  temporary  dis- 
ablement. 

Table  VI  has  been  prepared  for  the  purpose  of  comparing 
the  accident  rates  in  the  different  industries  of  the  State  with  those 
in  the  same  industries  of  certain  foreign  countries.  The  Austrian 
figures  are  most  nearly  comparable  with  those  of  Massachusetts, 


128 


as  they  include  all  accidents  reported  whether  compensation  was 
payable  or  not.  The  German  rates  are  based  upon  fatal  accidents 
and  those  resulting  in  more  than  thirteen  weeks'  disability.  They 
are  therefore  not  directly  comparable  with  the  rates  in  other  coun- 
tries, but  they  are  of  some  significance,  as  they  indicate  the  rela- 
tive frequency  of  accidents  of  a  serious  nature  in  the  various 
groups  of  industry. 


Table  VI.  —  Accident  Rates  in  Massachusetts  and  Foreign  Countries. 


Number  of  Accidents 

PER  1,000  Employees. 

Industry. 

Massachu- 
setts, 
1911-12. 

Austria, 1 
1907. 

Germany, 
1908. 

France, « 
1908. 

Breweries, 

75.3 

66.6 

12.0 

- 

Brick  and  tile, 

52.4 

32.7 

6.9 

83 

Building  trades, 

95.1 

75.0 

11.9 

154 

Chemicals, 

39.2 

42.0 

9.2 

147 

Clothing  —  total,        .... 

IB. 9 

18.5 

3.4 

8 

Boots  and  shoes,  . 

16.5 

- 

- 

- 

Other  clothing,     .... 

11.3 

- 

- 

- 

Distilleries,       .... 

100.9 

- 

12.0 

- 

Engineering  and  excavating,  . 

5&.6 

80.1 

- 

- 

Food  products,         .... 

41.4 

42.8 

4.9 

58 

Gas  and  water  works, 

52.0 

- 

6.8 

- 

Glass 

26.9 

31.7 

6.9 

- 

Inside  shipping, 

146.5 

- 

14.7 

- 

Iron  and  steel  —  total, 

158. S 

89.1 

11.6 

B67 

Manufacturing,     . 

158.7 

- 

- 

- 

Nonmanuf  acturing , 

62.4 

- 

- 

- 

Leather, 

38.5 

40.3 

3.4 

34 

Light  machinery  and  eUctro-technic 
total. 
Manufacturing,     . 

il  works  — 

57.8 
58.4 

153.4 

6.7 

_ 

Nonmanufacturing, 

50.2 

- 

- 

- 

Meat  products, 

60.8 

- 

- 

- 

Mercantile 

27.6 

77.6 

12.7 

59 

Metal  working. 

70.1 

55.3 

6.7 

144 

Milling 

37.5 

40.1 

12.0 

- 

Musical  instruments. 

30.3 

36.4 

6.7 

- 

>  All  accidents  reported. 

>  AH  accidents  resulting  in  over  four  days'  disability  are  included  in  computing  these  rates. 


129 


Table  VI.  —  Accident   Rates   in   Massachusetts   and   Foreign   Countries 

—  Concluded. 


Industry. 


Number  of  Accidents  per  1,000  Employees. 


Massachu- 
setts, 
1911-12. 


Austria,! 
1907. 


Germany, 
1908. 


France, 2 
1908. 


Paper  making. 
Paper  products, 
Pottery,    .... 
Printing  and  publishing. 
Quarrying, 
Railroads,  steam,     . 
Railways,  street, 

Sugar 

Teaming, 

Telephone  and  telegraph. 

Textiles  —  total, 

Cotton  goods, 

Woolen  and  worsted,    . 

Other  textiles. 
Woodworking,  . 
All  industries,  . 


51.4 
28.9 
50.0 
28.0 
93.6 
70.6 
89.5 
57.1 
99.1 
24.1 
34.0 
31.3 
38.3 
37.6 
59.0 
55.7 


41.8 

- 

33.4 

-    . 

- 

6.9 

21.8 

4.9 

90.5 

15.7 

99.9 

7.2 

-> 

_ 

86.0 

12.0 

- 

7.3 

- 

3.1 

13.5 

- 

19.2 

- 

18.3 

- 

81.7 

12.7 

65.2 

9.5 

74 

13 
33 
61 


'  All  accidents  reported. 

*  All  accidents  resulting  in  over  four  days'  disability  are  included  in  computing  these  rates. 

On  the  whole,  Table  VI  shows  a  fairly  close  correspondence  in 
the  relative  degree  of  risk  involved  in  the  different  groups  of 
industries.  For  instance,  the  highest  rate  in  Massachusetts  is 
found  in  iron  and  steel.  The  same  is  true  in  France,  and  this 
industry  has  a  high,  though  not  the  highest,  rate  in  both  Austria 
and  Germany.  On  the  other  hand,  the  lowest  rate,  that  in  clothing, 
in  Massachusetts  corresponds  to  the  lowest  in  the  column  for 
France,  and  is  one  of  the  lowest  in  the  other  two  countries. 
Such  variations  as  occur  in  the  table  may  be  in  part  due  to  the 
different  character  of  the  industries  bearing  the  same  general 
names  in  the  several  countries. 


130 


Table  VII.  —  Fatal  Accidents  reported  during  Twelve  Months, 
1911-April  30,  1912,  showing  Number  leaving  Dependents 
Extent  of  Dependency. 


Total  Numf 

ER. 

0 

a 

H 

1      NU.MBEK  LEAV- 
ING Dependents. 

^2i 
.5  c  0 

Industry. 

"3 
1 

s 

Totally 

dependent. 

s 
0 
-a 

Number    conce 
whose  Depen 
there  is   no  1 
mation. 

Breweries,    .... 

2 

2 

- 

- 

2 

- 

- 

Brick  and  tile,     . 

1 

1 

- 

1 

- 

- 

- 

Building  trades,  . 

28 

28 

- 

1 

15 

1 

11 

Chemicals,  .... 

4 

4 

- 

2 

2 

- 

- 

Clothing  —  total,  . 

5 

4 

1 

i, 

« 

1 

- 

Boots  and  shoes, 

6 

4 

1 

2 

2 

1 

- 

Other  clothing, 

- 

- 

- 

- 

- 

- 

- 

Distilleries, 

- 

- 

- 

- 

- 

- 

- 

Engineering  and  excavating. 

9 

9 

- 

- 

4 

- 

5 

Food  products,    . 

4 

4 

- 

- 

4 

- 

- 

Gas  and  water  works, 

8 

8 

- 

1 

4 

- 

3 

Glass 

- 

- 

- 

- 

- 

- 

- 

Inside  shipping,  . 

8 

8 

- 

1 

5 

- 

2 

Iron  and  steel  —  total, 

17 

17 

- 

4 

10 

- 

3 

Manufacturing, 

16 

16 

- 

4 

10 

- 

2 

Nonmanufacturing, 

1 

1 

- 

- 

- 

- 

1 

Leather,       .... 

5 

5 

- 

- 

3 

- 

2 

Light  machinery  and  electro- 
technical  —  total. 
Manufacturing, 

17 
5 

17 
5 

- 

h 

9 
4 

1 
1 

3 

Nonmanufacturing, 

12 

12 

- 

4 

5 

- 

3 

Marine  navigation. 

1 

1 

- 

.        - 

1 

■- 

- 

Meat  products,    . 

1 

1 

- 

1 

- 

- 

- 

Mercantile 

9 

9 

- 

4 

3 

- 

2 

Metal  working,    . 

1 

1 

- 

- 

1 

- 

- 

Milling,        .... 

- 

- 

- 

- 

- 

- 

- 

Musical  instruments,  . 

- 

- 

- 

- 

- 

- 

- 

Paper  making,    . 

7 

7 

- 

- 

5 

- 

2 

Paper  products,  . 

I 

1 

- 

1 

- 

- 

- 

Pottery 

- 

- 

- 

- 

- 

- 

- 

Printing  and  publishing,    . 

1 

1 

- 

1 

- 

- 

- 

Quarrying 

3 

3 

- 

1 

2 

- 

- 

131 


Table  VII.  —  Fatal  Accidents  reported  during  Twelve  Months,  Maij  1, 
1911-April  30,  1912,  showing  Number  leaving  Dependents  and  the 
Extent  of  Dependency  —  Concluded. 


Total  Number. 

o 

a 

M 

a 

■>  CO 

-^ 
1-  a 

Number  leav- 
ing Dependents. 

2-o« 

Industby. 

"3 
o 

6 

1 

a 

d 
a 

a 
o 

r 

Number   conce 
whose  Depen 
there    is  no 
mation. 

Railroads,  steam. 
Railways,  street. 
Sugar,          .... 
Teaming,     .... 
Telephone  and  telegraph,  . 
Textiles  —  total,  . 

Cotton  goods,  . 

Woolen  and  worsted. 

Other  textiles,  . 
Woodworking, 

83 
21 

13 
6 
20 
10 
6 
4 
7 

83 
21 

13 
6 
SO 
10 
6 
4 
7 

- 

13 

8 

5 

2 
7 
4 
3 

55 
10 

7 
3 
9 
5 

1 

3 

'7 

9 

1 
1 
1 

6 
3 

1 

3 

2 
1 

Total 

282 

281 

1 

59 

163 

14 

46 

Table  VII  gives  some  additional  information  in  regard  to  fatal 
accidents  in  Massachusetts.  The  primary  purpose  of  this  table 
is  to  afford  a  basis  for  the  calculation  of  cost  of  compensation. 
It  is  regrettable  that  there  is  so  large  a  number  of  cases  in  which 
no  information  could  be  obtained  from  employers  in  regard  to 
even  the  existence  of  dependents.  This  lack  of  information  is 
particularly  noteworthy  in  industries  where  the  labor  force  is 
constantly  shifting,  as  in  the  building  trades  and  in  engineering 
and  excavating.  W^here  the  employees  are  engaged  more  regu- 
larly, employers  were  able  to  give  the  commission  fairly  satis- 
factory information  in  most  cases. 


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136 

Table  VIII  was  also  prepared  as  a  basis  for  the  calculation  of 
costs.  It  distributes  nonfatal  accidents  according  to  the  extent 
of  disability.  As  a  basis  for  calculating  the  cost  of  compensation, 
however,  Table  VIII  is  quite  as  unsatisfactory  as  Table  VII.  It 
shows  a  large  number  of  accidents  concerning  which  the  length  of 
disability  is  unknown.  There  were  1,327  such  cases,  or  3.8  per 
cent,  of  all  the  nonfatal  accidents  reported.  It  is  probable  that 
nearly  all  of  these  cases  belong  in  the  class  which  is  entitled  to 
compensation  under  the  compensation  act,  namely,  those  result- 
ing in  more  than  two  weeks'  disability,  of  which  they  constitute 
18  per  cent.  Every  effort  w^as  made  by  the  commission  to  reduce 
this  unknown  class  to  the  lowest  limits,  but  many  of  the  victims 
had  not  recovered  from  their  injuries  at  the  time  the  tabulation 
was  made,  and  it  w^as  not  deemed  safe  to  accept  the  statements  of 
employers  as  to  the  probable  period  of  disability.  This  class  also 
contains  a  large  number  of  cases  concerning  which  the  employer 
had  no  knowledge  after  the  accident,  owing  to  the  fact  that  the 
injured  person  had  been  discharged  or  had  voluntarily  left  his 
service. 

One  other  class  of  cases  involves  a  similar  difficulty,  namely, 
those  where  the  disability  extended  beyond  a  period  of  twenty- 
six  weeks.  This  class  is  small,  however,  and  sufficient  informa- 
tion was  obtained  for  estimating  the  average  length  of  disability 
with  some  degree  of  accuracy. 

Table  VIII  is  of  interest,  however,  apart  from  the  question  of 
cost  of  compensation,  as  it  gives  some  idea  of  the  class  of  injuries 
most  characteristic  of  each  group  of  industries. 

Perhaps  the  most  significant  point  brought  out  by  this  table  is 
the  small  percentage  of  accidents  which  would  require  compen- 
sation under  the  new  law.  Only  21.2  per  cent,  of  all  nonfatal 
accidents  resulted  in  disability  of  over  two  weeks.  The  percen- 
tage varies  considerably  in  the  different  groups  of  industries,  the 
lowest  being  11.2  in  quarrying  and  11.8  in  iron  and  steel,  while 
the  highest,  with  the  exception  of  a  few  industries  where  the 
numbers  of  cases  are  too  small  to  warrant  an  inference,  is  44  in 
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to  the  average  with  21.7  per  cent,  of  such  injuries. 


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140 


In  Table  IX  accidents  in  the  various  groups  of  industries  are 
reduced  to  rates  per  1,000  employees  in  order  to  make  possible 
comparisons  between  industries  of  widely  varying  size.  It  would 
be  unsafe  to  base  an  inference  on  this  table  except  in  the  case  of 
all  accidents  and  those  occurring  in  a  few  of  the  largest  groups. 
The  uncertainty  in  regard  to  the  character  of  injuries  included  in 
the  unknown  class  makes  it  possible  to  reach  only  the  most 
general  conclusions  from  these  figures  as  to  the  frequency  of  acci- 
dents resulting  in  long-time  or  permanent  disability.  Teaming, 
railroads,  street  railways,  and  the  building  trades  show  high  rates 
for  long  periods  of  disability,  w'hile  textiles  and  boots  and  shoes 
have  comparatively  few  of  such  accidents. 

The  compensation  act  provides  extra  compensation  in  the  case 
of  certain  specified  injuries.  Great  care  was  taken,  therefore,  to 
ascertain  the  number  of  such  dismemberments,  and  every  case  of 
this  sort  was  carefully  followed  up  by  correspondence  in  order  to 
learn  the  exact  extent  of  the  injury.  The  following  table  gives 
the  results  of  this  inquiry. 


Table  X.  —  Number  of  Accidents  resulting  in  Specified  Injuries  reported 
during  Twelve  Months,  May  1,  1911- April  30,  1912. 


a  t< 

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o 

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Breweries,    .... 

- 

- 

- 

- 

- 

- 

- 

1 

3 

Brick  and  tile, 

- 

- 

- 

- 

- 

- 

1 

- 

- 

Building  trades,  . 

- 

- 

- 

3 

- 

- 

2 

16 

Chemicals,  .... 

- 

- 

- 

1 

- 

- 

- 

2 

15 

Clothing  —  total,  . 

- 

- 

- 

4 

3 

- 

- 

5 

35 

Boots  and  shoes, 

- 

- 

- 

4 

3 

- 

5 

33 

Other  clothing. 

- 

~ 

- 

- 

- 

- 

- 

2 

Distilleries,  .... 

- 

- 

- 

- 

- 

- 

- 

- 

- 

Engineering  and  excavating, 

- 

- 

- 

1 

- 

- 

- 

1 

4 

Food  products,    . 

- 

- 

- 

- 

- 

- 

- 

1 

8 

Gas  and  water  works. 

- 

- 

1 

- 

- 

- 

- 

- 

Glass 

- 

- 

- 

- 

- 

- 

- 

- 

4 

Inside  shipping,  . 

- 

- 

- 

- 

- 

1 

- 

- 

1 

141 


Table  X.  —  Number  of  Accidents  resulting  in  Specified  Injuries  reported 
during  Twelve  Months,  May  1,  1911-April  SO,  1912  —  Concluded. 


Industry. 

S 

1 

1 

a 
K 

1 
1 

1 
O 

1 

6 

D 

a 
O 

1 

-a 

a 

si 
W 

§ 
O 

1 

o 

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a 
O 

o 

I 

£ 
o 

o 
o 

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f 

2 
o 

u 
o 

h 

—  a 

Iron  and  steel  —  total,  . 

1 

- 

- 

n 

Z 

1 

- 

16 

76 

Manufacturing, 

1 

- 

- 

20 

2 

1 

- 

16 

75 

Nonmanufacturing, 

- 

- 

- 

1 

- 

- 

- 

- 

1 

Leather,       ,        .        .        . 

- 

1 

- 

1 

2 

- 

- 

1 

12 

Light  machinery  and  electro- 
technical  —  total. 
Manufacturing, 

- 

_ 

- 

6 

6 

1 

1 

1 

1 

1 

2 

22 

Nonmanufacturing, 

- 

- 

- 

- 

- 

~ 

- 

- 

2 

Marine  navigation, 

- 

- 

- 

- 

- 

- 

- 

- 

Meat  products,     . 

- 

- 

- 

3 

1 

- 

- 

2 

19 

Mercantile,  .... 

- 

- 

- 

- 

4 

- 

1 

- 

8 

Metal  working,     . 

- 

- 

- 

5 

- 

- 

- 

1 

14 

Milling,         .        .        .        . 

- 

- 

- 

- 

1 

- 

- 

- 

- 

Musical  instruments,  . 

.     - 

- 

~ 

- 

- 

- 

- 

- 

4 

Paper  making,     . 

- 

- 

- 

1 

1 

- 

- 

2 

8 

Paper  products,   . 

- 

- 

- 

- 

- 

- 

- 

1 

7 

Pottery 

- 

- 

- 

- 

- 

- 

- 

- 

- 

Printing  and  publishing,     . 

- 

- 

- 

- 

- 

- 

- 

1 

13 

Quarrying 

- 

- 

1 

3 

- 

1 

- 

- 

4 

Railroads,  steam, 

- 

- 

- 

4 

6 

5 

- 

3 

25 

Railways,  street, 

- 

- 

- 

6 

- 

2 

1 

2 

4 

Sugar, 

- 

- 

- 

- 

- 

- 

- 

- 

- 

Teaming,      .... 

- 

- 

- 

- 

1 

- 

- 

2 

1 

Telephone  and  telegraph,    . 

- 

- 

- 

- 

1 

- 

- 

- 

2 

Textiles  —  total,    . 

- 

- 

- 

5 

11 

- 

I 

16 

125 

Cotton  goods,  . 

- 

- 

- 

3 

5 

- 

1 

8 

72 

Woolen  and  worsted. 

- 

- 

- 

2 

2 

- 

- 

2 

28 

Other  textiles,  . 

- 

- 

- 

- 

4 

- 

- 

6 

25 

Woodworking, 

- 

- 

- 

2 

3 

- 

- 

15 

34 

Total 

1 

1 

1 

67 

37 

11 

5 

76 

466 

"^ — 

The  chief  purpose  of  Table  X  is  to  serve  as  a  basis  for  the 
calculation  of  the  cost  of  compensation,  but  it  is  also  significant 


142 

as  an  indication  of  the  characteristic  accidents  of  the  different 
groups  of  industries.  For  example,  injuries  to  the  eyes  are  most 
frequent  in  iron  and  steel,  which  accounts  for  the  only  case  of 
the  loss  of  both  eyes  and  for  one  third  of  the  cases  of  loss  of  one 
eye.  Textiles,  iron  and  steel,  and  boots  and  shoes^  account  for  the 
greater  number  of  lost  fingers  and  hands.  These  facts  emphasize 
the  need  of  safety  devices  and  show  the  particular  dangers  which 
most  need  to  be  guarded  against. 

Table  XI  contains  the  results  of  an  attempt  to  ascertain  what 
would  have  been  the  net  cost  of  medical  care,  funeral  expenses, 
and  compensation  in  the  accidents  reported  to  the  commission 
during  the  year  by  applying  to  these  cases  the  scale  of  benefits 
set  forth  in  the  compensation  act.  It  is  self-evident  that  the 
accuracy  of  this  table  can  be  no  greater  than  that  of  the  preceding 
tabulations  upon  which  it  is  based.  The  commission  is  well 
aware,  as  has  been  repeatedly  pointed  out,  that  these  statistics 
contain  defects  which  could  not  be  eliminated,  but  a  majority  of 
the  commission  believes  that  it  is  justified  in  presenting  the  data 
that  it  obtained  in  the  course  of  its  investigations,  even  though 
fuller  information  derived  from  experience  under  the  new  law 
may  hereafter  disclose  defects  not  now  apparent. 

No  conclusions  can  be  safely  based  upon  the  figures  contained 
in  Table  XI  without  a  careful  consideration  of  all  the  explanations 
and  quaUfications  which  accompany  the  preceding  tables. 


143 


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146 

The  first  column  of  Table  XI  gives  the  average  weekly  wages 
in  the  industries  represented  in  the  preceding  tables.  These  figures 
were  for  the  most  part  obtained  from  the  Statistics  of  Manu- 
factures of  the  Massachusetts  Bureau  of  Statistics  for  1909;  but 
in  the  nonmanufacturing  employments  computations  were  made 
on  the  basis  of  the  wages  reported  directly  to  the  commission  by 
employers.  It  is  well  recognized  that  all  such  averages  are  apt  to 
be  misleading.  The  figures  in  this  table  are  particularly  open  to 
criticism,  for  they  are  based  upon  the  earnings  of  men,  women, 
and  children  who  are  found  in  widely  differing  proportions  in  the 
working  forces  of  the  various  groups  of  industries.  An  average, 
however,  was  the  only  measure  which  could  be  applied  in  the  com- 
putation of  costs  after  the  accidents  had  been  tabulated  by  indus- 
tries and  periods  of  disability.  It  would  have  been  possible,  of 
course,  to  have  computed  the  compensation  in  each  case  sep- 
arately by  making  use  of  the  actual  wages  received  by  the  injured 
person,  but  the  labor  involved  in  handling  the  thousands  of  cases 
in  this  way  was  too  great,  and  the  time  was  too  short  to  warrant 
such  an  undertaking. 

A  number  of  troublesome  questions  arose  in  connection  with  the 
factors  used  in  computing  the  various  elements  of  cost.  After 
careful  consideration  and  consultation  with  persons  of  long  expe- 
rience in  such  matters,  the  following  rates  were  applied  to  deter- 
mine the  cost  of  medical  and  hospital  service  which  is  to  be  pro- 
vided under  the  compensation  act  during  the  first  two  weeks  of 
disability  in  every  case:  $1  each  for  all  cases  of  one  day  or  less,  $3 
each  for  those  of  over  one  day  to  one  week,  $7.50  each  for  those  of 
over  one  week  to  two  weeks,  and  $15  each  for  all  those  where  the 
disability  extended  beyond  two  weeks.  The  total  cost  of  medical 
service  computed  in  this  way  amounts  to  $179,904,  or  $5.20  per 
accident  reported.  If  this  were  increased  to  $10  per  reported 
accident,  as  estimated  by  some  insiu-ance  experts,  it  would  in- 
crease the  total  cost  by  $166,396,  or  only  16  per  cent. 

In  figuring  the  cost  in  fatal  cases  full  compensation  was  allowed 
wherever  there  were  dependents  wholly  dependent  upon  the  de- 
ceased, and  also  where  information  concerning  dependents  was 
lacking.  In  the  case  of  partial  dependents,  however,  one  half  of 
full  compensation  was  assumed  to  be  payable. 


147 

In  the  nonfatal  accidents  it  was  assumed  that  the  disabiUty 
lasted  on  the  average  three  weeks,  in  the  class  of  the  two  to  four 
weeks'  cases,  five  weeks  in  the  four  to  six  weeks'  class,  and  so  on. 
In  the  twenty-six  weeks'  and  over  class  the  average  duration  was 
assumed  to  be  thirty-five  weeks.  Sufficient  information  was  ob- 
tained in  these  cases  to  make  this  a  fairly  accurate  estimate  rather 
than  a  guess.  In  the  cases  of  unknown  duration  it  was  assumed 
that  they  all  extended  beyond  two  weeks,  and  that  the  average 
was  the  same  as  that  of  known  cases  of  two  weeks  and  over. 

This  method  was  found,  by  actual  count  of  a  considerable  num- 
ber of  cases,  to  be  approximately  correct  for  the  shorter  periods 
and  not  far  out  of  the  way  in  the  longer  periods;  that  is,  it  was 
found  that  the  average  duration  in  each  group  was  somewhat 
below  the  mean.  This  is  exactly  what  would  be  expected  in  view 
of  the  fact  that  there  are  more  accidents  resulting  in  short  periods 
of  disability  than  in  long  periods.  It  will  be  seen,  therefore,  that 
this  method  of  computation  tended  to  magnify  costs  somewhat. 

One  other  point  should  be  mentioned  as  tending  also  to  make 
the  cost  higher  than  it  would  be  in  the  practical  operation  of  the 
law,  namely,  that  compensation  was  assumed  to  be  due  in  every 
case.  It  is  probable  that  some  of  the  accidents  reported  may  have 
been  the  result  of  serious  and  wilful  misconduct  on  the  part  of 
the  injured  person,  or  may  not  have  arisen  out  of  the  employ- 
ment. 

Concerning  one  class  of  cases  very  little  information  could  be 
obtained.  These  were  the  permanent  total  disability  cases.  Only 
a  few  of  such  cases  could  be  positively  determined  at  the  time  the 
investigation  was  closed.  The  German  statistics  for  a  consider- 
able number  of  years  show  that  such  cases  are  not  very  numerous, 
being  on  the  average  for  a  period  of  ten  years  only  10  per  cent,  of 
the  number  of  fatalities.  Compared  with  temporary  disability 
cases,  which  in  Germany  are  at  least  thirteen  weeks  in  duration, 
these  permanent  total  disability  cases  are  in  the  ratio  of  1  to  60. 
Neither  method  was  entirely  satisfactory  for  estimating  the  prob- 
able number  of  cases  of  this  sort  among  the  accidents  occurring 
in  Massachusetts,  but  as  the  former  gave  the  larger  number  it 
was  followed.  It  has,  therefore,  been  assumed  for  the  purpose  of 
computing  costs  that  there  were  twenty-eight  such  cases,  and 


148 

these  have  been  distributed  among  the  different  groups  of  in- 
dustries, and  the  cost  of  compensation  included  under  the  head- 
ing "Compensation  for  DisabiHty." 

Having  found  the  total  cost  of  the  accidents  in  this  way  for 
each  group  of  industries,  the  next  step  was  to  reduce  this  cost  to 
a  comparable  basis  by  finding  the  rate  per  $100  of  pay  roll.  As 
the  commission  did  not  require  employers  to  report  their  pay 
rolls,  it  was  necessary  to  compute  one  for  the  establishments 
included  in  the  various  groups.  This  was  done  by  multiplying  the 
number  of  employees  by  the  average  rates  of  wages.  This  was 
merely  reversing  the  process  by  which  the  average  rate  of  wages 
was  obtained  in  the  case  of  the  manufacturing  industries,  but  it 
was  necessary  to  do  this  because  the  reports  to  the  commission 
covered  only  a  part  of  the  establishments  included  in  the  United 
States  Census  figures. 

Having  ascertained  the  total  cost  in  each  group,  and  for  all 
industries  as  set  forth  above,  it  was  deemed  best  to  make  a  liberal 
allowance  to  cover  possible  unreported  accidents  and  such  other 
elements  of  cost  as  may  have  been  underestimated,  by  adding  a 
factor  of  safety  of  100  per  cent.  The  rates  per  $100  of  pay  roll 
in  the  last  column  of  Table  XI  are  calculated  upon  this  basis.  If 
these  rates  are  compared  with  the  premiums  charged  for  insurance 
under  the  new  law,  it  should  be  remembered  that  no  expense 
loading  has  been  applied  to  cover  the  cost  of  securing  business, 
making  settlements,  and  the  prevention  of  accidents;  nor  has  any 
allowance  been  made  for  a  surplus  of  any  kind.  As  has  already 
been  stated  in  this  report  (p.  46),  the  commission  is  of  the  opinion 
that  measures  for  the  prevention  of  accidents  are  of  the  utmost 
importance,  and  it  believes  that  considerable  sums  may  be  prop- 
erly expended  in  this  direction. 

Attention  has  been  repeatedly  called  to  the  fact  that  many  of 
the  groups  are  too  small  to  render  a  rate  based  upon  the  experience 
of  a  sijigle  year  satisfactory  or  safe  as  an  indication  of  the  prob- 
able cost,  and  for  this  reason  rates  have  been  carried  out  for  those 
groups  only  where  more  than  10,000  employees  are  covered.  For 
these  larger  groups  and  for  all  industries  taken  as  a  whole,  how- 
ever, the  commission  believes  that  no  great  changes  will  occur 
from  year  to  year,  and  that  the  rates  set  forth  in  the  table  are 
adequate  to  cover  the  net  cost  of  compensation  under  the  act. 


149 

It  will  doubtless  be  the  experience  of  this  State,  as  it  has  been  of 
every  country  where  compensation  laws  have  been  adopted,  that 
the  number  of  accidents  reported  will  increase  very  materially 
•under  the  operation  of  the  law;  but  the  commission  is  of  the 
opinion  that,  while  some  accidents  may  have  been  omitted  by 
employers  who  made  reports  during  the  past  year,  most  of  these 
were  trivial  in  character,  and  that  the  larger  part  of  such  increase 
will  come  from  employers  who  have  not  hitherto  made  reports. 
This  latter  class  is  doubtless  very  large  in  certain  nonmanufac- 
turing  lines,  and  as  a  result  the  rates  in  such  branches  of  industry 
may  be  greatly  modified,  but  attention  is  called  to  the  fact  that 
if  these  unreported  accidents  have  not  entered  into  the  computa- 
tion of  costs  on  the  side  of  payments,  neither  have  the  pay  rolls 
of  such  concerns  formed  a  part  of  the  base  on  which  rates  were 
calculated. 

There  will  undoubtedly  be  some  malingering  which  will  add  to 
the  cost  under  the  law,  but  it  is  impossible  to  make  allowance  in 
advance  for  such  an  entirely  unknown  factor  in  the  problem. 
The  commission  is  convinced,  however,  that  the  Industrial  Acci- 
dent Board  can,  with  the  co-operation  of  employers  and  insurance 
companies,  control  this  matter  satisfactorily.  Furthermore,  it 
should  be  possible  for  the  Board  to  check  any  tendency  to  unduly 
swell  the  cost  of  medical  service. 


APPENDICES 


APPENDIX  A. 


ACTS   OF   1909,    CHAPTER   514,   SECTIONS   136-140. 

Section  136.  An  employer  of  labor  may  submit  to  the  state  board  of 
conciliation  and  arbitration  a  plan  of  compensation  for  employees  in  his 
employ,  providing  for  payments  to  them  in  the  event  of  injury  in  the 
course  of  their  employment,  based  upon  a  certain  percentage  of  their 
average  earnings,  and  without  reference  to  legal  liabiUty  under  the  com- 
mon law  of  the  employers'  liability  act.  After  examination  of  such  plan* 
of  compensation,  and  a  public  hearing  thereon  after  public  notice  thereof, 
said  board  may,  if  it  considers  the  plan  fair  and  just  to  the  employee, 
give  its  approval  thereof  by  its  certificate  attached  thereto;  and,  there- 
after, the  employer  may  enter  into  a  contract  with  his  employees  by 
which  they  shall  release  him  from  liability  in  case  of  injury  in  the  course 
of  said  employment  and  accept  in  lieu  thereof  the  compensation  provided 
in  said  plan. 

Section  137.  Either  parent  or  the  guardian  of  any  minor  employee 
may  agree  to  said  plan  of  compensation  in  behalf  of  the  minor.  Such 
agreement  shall  be  in  writing  signed  by  the  employee,  or,  in  the  case  of  a 
minor  employee,  by  either  parent  or  the  guardian,  in  the  presence  of  two 
witnesses,  of  whom  one  shall  be  an  employee  at  the  time  of  such  signature. 

Section  138.  No  employer  shall  require  as  a  condition  of  employment 
that  any  employee  shall  assent  to  any  plan  of  compensation  or  in  any 
way  waive  his  legal  right  to  recover  damages  for  an  injury  outside  the 
provisions  of  such  plan,  and  no  contract  under  such  plan  of  compensation 
shall  be  binding  for  more  than  one  year  from  the  date  thereof. 

Section  139.  The  employees  of  any  employer  of  labor,  numbering  at 
least  ten  per  cent  of  those  regularly  employed  during  the  preceding  year, 
may  submit  to  the  state  board  of  conciliation  and  arbitration  a  plan  of 
compensation  such  as  is  described  in  section  one  hundred  and  thirty-six 
of  this  act.  Such  plan  shall  be  referred  to  the  employer,  and  in  case  no 
agreement  between  the  employer  and  employees  is  reached  within  thirty 
days  and  reported  to  said  board,  then  after  examination  of  the  said  plan 
of  compensation,  and  a  public  hearing  thereon  after  public  notice  thereof, 
the  board  of  conciliation  and  arbitration  may,  if  it  considers  the  same 
fair  and  just  to  the  employer  and  employees,  recommend  to  the  employer 


154 

the  adoption  of  the  same.  Upon  notice  of  acceptance  of  the  plan  duly 
filed  by  the  employer  the  plan  shall  be  deemed  to  be  in  force  precisely  as 
if  it  had  been  submitted  and  approved  under  the  provisions  of  the  pre- 
ceding sections  of  this  act. 

Section  140.  Except  as  provided  in  the  four  preceding  sections,  no 
person  shall,  by  a  special  contract  with  his  employees,  exempt  himself 
from  liability  which  he  may  be  under  to  them  for  injuries  suffered  by 
them  in  their  employment  and  resulting  from  the  negligence  of  the  em- 
ployer or  of  a  person  in  his  employ. 


155 


APPENDIX  B. 


TABLES  I  AND  II  FROM  THE   PRELIMINARY  REPORT  OF 
THE  COMMISSION.! 

In  Table  I  the  results  of  the  ten  weeks'  investigation  of  accidents  in 
about  120  establishments  in  this  Commonwealth  are  set  forth  in  such  a 
way  as  to  show  the  proportion  of  cases  that  would  be  entitled  to  com- 
pensation under  a  law  providing  for  a  waiting  period  of  two  weeks.  It 
should  be  noted  that  the  exact  length  of  disability  could  not  he  deter- 
mined in  135  cases  at  the  time  the  tabulation  was  undertaken.  This 
number  is  made  up  of  two  classes  of  cases:  namely,  serious  injuries  occur- 
ring at  various  times  during  the  reporting  period;  and  slighter  injuries 
which  occurred  near  the  close  of  that  period.  This  table  and  the  inves- 
tigation which  provided  the  data  for  it  are  of  interest  chiefly  for  the  pur- 
pose of  indicating  what  must  be  done  on  a  larger  scale  in  order  to  secure 
an  adequate  basis  for  estimating  the  cost  of  a  compensation  act. 

It  is  worthy  of  note,  however,  that  less  than  11  per  cent,  of  the  acci- 
dents reported  were  of  a  character  to  require  compensation.  There  is 
reason  to  believe  that  this  proportion  would  have  been  somewhat  smaller 
if  all  the  concerns  had  reported  every  trivial  accident;  but  the  experience 
of  some  large  companies  which  have  studied  their  own  accidents  over 
long  periods  of  time  seems  to  indicate  that  this  proportion  is  approxi- 
mately correct. 

The  first  column  of  this  table  is  included  in  order  to  indicate  to  what 
extent  the  figm-es  resulting  from  the  investigation  are  representative  of 
the  various  Imes  of  industry.  It  should  be  noted  that  the  statistics  of 
manufactures  are  not  as  complete  as  census  returns,  but  they  represent 
at  least  90  per  cent,  of  the  industries  covered.  They  were  used  because 
the  figures  for  the  thirteenth  census  are  not  yet  available.  The  rapid 
growth  of  some  lines  of  business  during  the  past  three  years  accounts  for 
the  disproportionate  number  of  employees  in  the  two  columns  in  several 
instances. 

1  House  No.  300.  1911. 


156 


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Table  II  shows  the  cost  to  734  employers  of  the  present  system  of  pro- 
viding for  the  victims  of  industrial  accidents  in  this  State.  It  will  be 
noted  that  these  establishments  were  in  most  cases  large  ones,  as  the 
average  number  of  employees  is  271;  while  the  average  for  the  5,969 
establishments  covered  by  the  Statistics  of  Manufactures  of  the  Massa- 
chusetts Bureau  of  Statistics  is  only  85. 

Of  the  734  establishments,  there  were  59,  with  10,976  employees,  which 
carried  no  liability  insurance.  The  cost  of  claims  and  suits  to  these  unin- 
sured employers  was  $23,705.  Deducting  this  amount  from  the  net  cost 
as  it  appears  in  the  table  under  that  heading  leaves  $133,144  as  the  amount 
which  insured  employers  expended  in  excess  of  premiums  in  meeting  their 
legal  liabiUty. 

The  total  amount  expended  for  all  purposes  in  connection  with  acci- 
dents, exclusive  of  the  sums  refunded  by  insurance  companies,  was 
$483,405.18.  This  means  an  average  cost  of  42  cents  per  $100  of  pay 
roll.  It  would  not  be  safe  to  compute  rates  for  all  of  the  industries  con- 
tained in  this  table,  because  of  the  small  figures  involved  and  the  conse- 
quent liability  to  error,  due  to  exceptional  occurrences  during  the  year 
in  question;  but  three  important  industries  in  this  State,  with  a  pro- 
portionately large  representation  in  this  table,  should  be  noted.  Boots 
and  shoes  show  a  rate  of  13  cents  per  $100  of  pay  roll;  cotton  goods,  24 
cents;  and  foundries,  40  cents. 


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161 


APPENDIX  C. 


OPINION    OF    THE    JUSTICES    OF    THE    MASSACHUSETTS 
SUPREME  JUDICIAL  COURT.i 

To  the  Honorable  Senate  of  the  Commonwealth  of  Massachusetts: 

We  have  received  the  questions,  of  which  a  copy,  with  the  act  referred 
to  therein  and  the  amendment  adopted  by  the  Senate,  is  hereto  annexed, 
and  after  giving  to  them  such  consideration  as  we  have  been  able  to  give 
in  the  time  at  our  disposal,  we  respectfully  answer  them  as  follows:  — 

The  questions  submitted  to  us  are  important,  and  the  proposed  act 
involves  a  radical  departure  in  the  manner  of  dealing  with  actions  or 
claims  for  damages  for  personal  injuries  received  by  employees  in  the 
course  of  their  employment  from  that  which  has  heretofore  prevailed  in 
this  Commonwealth;  but  we  think  that  nothing  would  be  gained  by  an 
extended  discussion  and  we  therefore  content  ourselves  with  stating 
briefly  the  conclusions  to  which  we  have  come  and  our  reasons  therefor. 

The  first  section  of  the  act  (Part  I.  §  1)  provides  that  "In  an  action 
to  recover  damages  for  personal  injury  sustained  by  an  employee  in  the 
course  of  his  employment,  or  for  death  resulting  from  personal  injury 
so  sustained,  it  shall  not  be  a  defense: 

1.  That  the  employee  was  negligent; 

2.  That  the  injury  was  caused  by  the  negligence  of  a  fellow  employee; 

3.  That  the  employee  had  assumed  the  risk  of  the  injury." 

This  section  deals  with  actions  at  common  law.  We  construe  clauses  1 
and  2  in  their  reference  to  negligence  as  meaning  contributory  negligence 
or  negligence  on  the  part  of  a  fellow  servant  which  falls  short  of  the  serious 
and  wilful  misconduct  which  under  Part  II.  §  2,  will  deprive  an  employee 
of  the  right  to  compensation.  So  construed  we  think  that  the  section  is 
constitutional.  We  neither  express  nor  intimate  any  opinion  whether  it 
would  be  unconstitutional  if  otherwise  construed.  The  rules  of  law  relat- 
ing to  contributory  negligence  and  assumption  of  the  risk  and  the  effect 
of  negligence  by  a  fellow  servant  were  established  by  the  courts,  not  by 
the  Constitution,  and  the  Legislature  may  change  them  or  do  away  with 
them  altogether  as  defenses  (as  it  has  to  some  extent  in  the  employers'  lia- 
bihty  act)  as  in  its  wisdom  in  the  exercise  of  powers  intrusted  to  it  by  the 
Constitution  it  deems  will  be  best  for  the  "good  and  welfare  of  this  Com- 
monwealth." Const.  Mass.  c.  1,  §  1,  art.  4.  See  Missouri  Pacific  Rail- 
way V.  Mackey,  127  U.  S.  205;  Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593. 

'  Reported  in  209  Mass.  607. 


162 

The  act  expressly  provides  that  it  shall  not  apply  to  injuries  sustained  be- 
fore it  takes  effect.  If,  therefore,  a  right  of  action  which  has  accrued 
under  existing  laws  for  personal  injuries  constitutes  a  vested  right  or  in- 
terest, there  is  nothing  in  the  section  which  interferes  with  such  right  or 
interest.  The  effect  of  the  section  is  not  to  authorize  the  taking  of  prop- 
erty without  due  process  of  law,  as  the  Court  of  Appeals  of  New  York 
held  was  the  case  with  the  statute  referred  to  in  the  preamble  to  the 
questions  submitted  to  us  and  which  in  consequence  thereof  was  declared 
by  that  court  to  be  unconstitutional.  Ives  v.  South  Buffalo  Railroad, 
201  N.  Y.  271.  Construing  the  section  as  we  do,  and  as  we  think  that  it 
should  be  construed,  it  seems  to  us  that  there  is  nothing  in  it  which 
violates  any  rights  secured  by  the  State  or  Federal  Constitutions.  We 
see  nothing  unconstitutional  in  providing,  as  is  done  in  Part  I.  §  2,  that 
the  provisions  of  §  1  shall  not  apply  to  domestic  servants  and  farm 
laborers;  nor  in  providing,  as  is  done  in  Part  I.  §  5,  that  the  employee 
shall  be  deemed  to  have  waived  his  right  of  action  at  common  law  if  he 
shall  not  have  given  notice  to  his  employer  as  therein  provided.  The 
effect  of  the  provisions  referred  to  is  to  leave  it  at  the  employee's  option 
whether  he  will  or  will  not  waive  his  right  of  action  at  common  law.  See 
Foster  v.  Morse,  132  Mass.  354. 

The  rest  of  the  act  deals  mainly  with  a  scheme  for  providing,  through 
the  instrumentaUty  of  a  corporation  established  for  that  purpose  entitled 
the  Massachusetts  Employees  Insurance  Association,  and  the  subscrip- 
tion of  employers  thereto,  for  compensation  to  employees  for  personal 
injuries  received  by  them  in  the  course  of  their  employment,  and  not  due 
to  serious  and  wilful  misconduct  on  their  part.  There  is  nothing  in  the 
act  which  compels  an  employer  to  become  a  subscriber  to  the  association, 
or  which  compels  an  employee  to  waive  his  right  of  action  at  common  law 
and  accept  the  compensation  pro\dded  for  in  the  act.  In  this  respect  the 
act  differs  wholly  so  far  as  the  employer  is  concerned  from  the  New  York 
statute  above  referred  to.  By  subscribing  to  the  association  an  employer 
voluntarily  agrees  to  be  bound  by  the  provisions  of  the  act.  The  same  is 
true  of  an  employee  who  does  not  choose  to  stand  upon  his  common  law 
rights.  An  employer  who  does  not  subscribe  to  the  association  will  no 
longer  have  the  right  in  an  action  by  his  employee  against  him  at  com- 
mon law  to  set  up  the  defence  of  contributory  negUgence  or  assumption 
of  the  risk,  or  to  show  that  the  injury  was  caused  by  the  negligence  of  a 
fellow  servant.  In  the  case  of  an  employee  who  does  not  accept  the  com- 
pensation provided  for  by  the  act  and  whose  employer  has  become  a 
subscriber  to  the  association,  an  action  no  longer  can  be  maintained  for 
death  under  the  employers'  liability  act.  But  these  considerations  do  not 
constitute  legal  compulsion  or  a  deprivation  of  fundamental  rights.  We 
do  not  deem  it  necessary  to  take  up  and  consider  in  detail  the  numerous 
provisions  by  which  the  right  to  compensation  and  the  amount  thereof 
and  the  persons  entitled  thereto  and  the  course  of  procedure  to  be  fol- 
lowed and  matters  relating  thereto  are  to  be  settled  and  determined. 


163 

We  assume,  however,  that  the  meaning  of  §§  4  and  7  of  Part  III.  of 
the  proposed  act  is  that  the  approved  agreement  or  decision  therein  men- 
tioned is  to  be  enforced  by  proper  proceedings  in  court,  and  not  by  process 
to  be  issued  by  the  Industrial  Accident  Board  itself.  Taking  into  account 
the  non-compulsory  character  of  the  proposed  act,  we  see  nothing  in  any 
of  these  provisions  which  is  not  "in  conformity  with"  the  Fourteenth 
Amendment  of  the  Federal  Constitution,  or  which  infringes  upon  any 
provision  of  our  own  Constitution  in  regard  to  the  taking  of  property 
"without  due  process  of  law."  It  is  within  the  power  of  the  Legislature 
to  provide  that  no  agreement  by  an  employee  to  waive  his  rights  to  com- 
pensation under  the  act  shall  be  valid.  See  Missouri  Pacific  Railway  v. 
Mackey,  127  U.  S.  205;  Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593. 

In  regard  to  the  amendment  it  is  to  be  observed  that  no  liability  insur- 
ance company  is  obliged  to  insure,  and  that  if  it  chooses  to  do  so  there  is 
nothing  unconstitutional  in  requiring  that  it  and  the  policyholder  shall  be 
governed  by  the  provisions  of  the  act  so  far  as  apphcable. 

It  should  be  noted  perhaps  in  the  interest  of  accuracy  that  there  is  no 
phrase  in  our  Constitution  which  in  terms  requires  that  "property  shall 
not  be  taken  from  a  citizen  without  due  process  of  law."  The  quoted 
words,  which  we  take  from  the  first  question  submitted  to  us,  are  a  para- 
phrase of  what  is  contained  in  the  Constitution,  but  are  not  the  language 
of  the  Constitution  itself. 

We  have  confined  ourselves  to  the  questions  submitted  to  us,  and  we 
answer  both  of  them  in  the  affirmative. 

Owing  to  their  absence  from  the  Commonwealth,  the  chief  justice  and 
Mr.  Justice  Loring  have  taken  no  part  in  the  consideration  of  the  questions. 

JAMES  M.  MORTON. 

JOHN  W.  HAMMOND. 

HENRY  K.  BRALEY. 

HENRY  N.  SHELDON. 

•ARTHUR  PRENTICE  RUGG. 
July  24,  1911. 


164 


APPENDIX  D. 


COMPENSATION   LAWS   IN   THE   UNITED   STATES. 

ARIZONA. 

Special  Session,  1912,  Chapter  14. 

An  Act  securing  Compensation  for  Injuries  to  Workmen  and 
Their  Dependents  Received  While  Engaged  in  Dangerous 
and  Hazardous  Service,  and  Providing  Remedies  therefor. 
Be  it  Enacted  by  the  Legislature  of  the  State  of  Arizona: 

Sec.  1.  That  this  Act  is  a  Workman's  Compulsory  Compensation 
law  as  provided  in  Sec.  8  of  Article  XVIII  of  the  State  Constitution. 

Sec.  2.  Compulsory  compensation  shall  be  paid  by  his  employer  to 
any  workman  engaged  in  any  employment  declared  and  determined  as 
in  Sec.  3  of  this  Act  (as  provided  in  Sec.  8  of  Article  XVIII  of  the  State 
Constitution)  to  be  especially  dangerous,  whether  said  employer  be  a 
person,  firm,  association,  company,  or  corporation,  if  in  the  course  of 
the  employment  of  said  employee  personal  injury  thereto  from  any 
accident  arising  out  of,  and  in  the  course  of,  such  employment  is  caused 
in  whole,  or  in  part,  or  is  contributed  to,  by  a  necessary  risk  or  danger 
of  such  employment,  or  a  necessary  risk  or  danger  inherent  in  the  nature 
thereof,  or  by  failure  of  such  employer,  or  any  of  his  or  its  officers,  agents, 
or  employee  or  employees,  to  exercise  due  care,  or  to  comply  with  any 
law  affecting  such  employment. 

Sec.  3.  The  employments  hereby  declared  and  determined  to  be 
especially  dangerous  (as  provided  in' Sec.  8  of  Article  XVIII  of  the  State 
Constitution)  within  the  meaning  of  this  Act  are  as  follows: 

1.  The  operation  of  steam  railroads,  electrical  railroads,  street  rail- 
roads, by  locomotives,  engines,  trains,  motors,  or  cars  of  any  kind  pro- 
pelled by  a  steam,  electricity,  cable  or  other  mechanical  power,  including 
the  construction,  use  or  repair  of  machinery,  plant,  track,  switches, 
bridges,  road-beds,  upon,  over,  and  by  which  such  railway  business  is 
operated. 

2.  All  work  when  making,  using  or  necessitating  dangerous  proximity 
to  gunpowder,  blasting  powder,  dynamite,  compressed  air,  or  any  other 
explosive. 

3.  The  erection  or  demolition  of  any  bridge,  building  or  structure  in 
which  there  is,  or  in  which  the  plans  and  specifications  require,  iron  or 
steel  frame  work. 

4.  The  operation  of  all  elevators,  elevating  machinery  or  derricks  or 


165 

hoisting  apparatus  used  within  or  on  the  outside  of  any  bridge,  build- 
ing or  other  structure  for  conveying  materials  in  connection  with  the 
erection  or  demoUtion  of  such  bridge,  building  or  structure. 

5.  All  work  on  ladders  or  scaffolds  of  any  kind  elevated  twenty  (20) 
feet  or  more  above  the  ground  or  floor  beneath  in  the  erection,  construc- 
tion, repair,  painting  or  alteration  of  any  building,  bridge,  structure  or 
other  work  in  which  the  same  are  used. 

6.  All  work  of  construction,  operation,  alteration  or  repair,  where 
wires,  cables,  switchboards,  or  other  apparatus  or  machinery  are  in  use 
charged  with  electrical  current. 

7.  All  work  in  the  construction,  alteration  or  repair  of  pole  lines  for 
telegraph,  telephone  or  other  purposes. 

8.  All  work  in  mines;  and  all  work  in  quarries. 

9.  All  work  in  the  construction  and  repair  of  tunnels,  sub-ways  and 
viaducts.  ' 

10.  All  work  in  mills,  shops,  works,  yards,  plants  and  factories  where 
steam,  electricity,  or  any  other  mechanical  power,  is  used  to  operate 
machinery  and  appliances  in  and  about  such  premises. 

Sec.  4.  In  case  such  employee  or  his  personal  representative  shall 
refuse  to  settle  for  such  compensation  (as  provided  in  Sec.  8  of  Article 
XVIII  of  the  State  Constitution,  and  chooses  to  retain  the  right  to  sue 
said  employer  (as  provided  in  any  law  provided  for  in  Sec.  7,  Article 
XVIII  of  the  State  Constitution)  he  may  so  refuse  to  settle  and  may 
retain  said  right. 

Sec.  5.  It  is  hereby  declared  and  determined  to  be  contrary  to  pub- 
lic policy  that  any  employer  conducting  any  especially  dangerous  in- 
dustry, through  any  of  his  or  its  officers,  agents  or  employee  or  employees, 
shall  fail  to  exercise  due  care,  or  fail  to  comply  with  any  law  affecting 
such  employment,  in  such  manner  as  to  endanger  the  lives  and  safety 
of  employees  thereof,  without  assuming  the  burden  of  financial  loss 
through  disability  entailed  upon  such  employees,  or  their  dependents, 
through  such  failure;  and  it  is  further  declared  and  determined  to  be 
contrary  to  public  policy  that  the  burden  of  the  financial  loss  to  employees 
in  such  dangerous  employments,  or  to  their  dependents,  due  to  injuries 
to  such  employees  received  through  such  accidents  as  are  hereinbefore 
mentioned  shall  be  borne  by  said  employees  without  due  compensation 
paid  to  said  employees,  or  their  dependents,  by  the  employer  conducting 
such  employment,  owing  to  the  inability  of  said  employees  to  secure 
employment  in  said  employments  under  a  free  contract  as  to  the  con- 
ditions under  which  they  will  work. 

Sec.  6.  The  common  law  doctrine  of  no  hability  without  fault  is 
hereby  declared  and  determined  to  be  abrogated  in  Arizona  as  far  as  it 
shall  be  sought  to  be  applied  to  the  accidents  hereinbefore  mentioned. 

Sec.  7.  When,  in  the  course  of  work  in  any  of  the  employments 
described  in  Sec.  3  above,  personal  injury  by  accident  arising  out  of 
and  in  the  course  of  such  labor,  service,  or  employment,  is  caused  to  or 


166 

suffered  by  any  workman  engaged  therein,  by  any  risk  or  failure  speci- 
fied in  Sec.  2  hereof,  then  such  employer  shall  be  liable  to  and  must  make 
and  pay  compensation  to  the  workman  injured,  and  his  personal  repre- 
sentative, when  death  ensues,  for  the  benefit  of  the  estate  of  the  deceased, 
for  such  injury  at  the  rates  and  in  the  manner  hereinafter  set  out  in  this 
Act; 

Peovided,  That  the  employer  shall  not  be  liable  under  this  Act  in 
respect  of  any  injury  which  does  not  disable  the  workman  for  a  period 
of  at  least  two  weeks  after  the  date  of  the  accident  from  earning  full 
wages  at  the  work  at  which  he  was  employed  at  the  time  of  the  injury, 
and 

Peovided,  Further,  that  the  employer  shall  not  be  liable  under  this 
Act  in  case  the  employee  refuses  to  settle  for  such  compensation  and 
retains  his  right  to  sue  as  provided  in  Sec.  4  of  this  Act. 

Sec.  8.'  When  an  injury  is  received  by  a  workman  engaged  in  any 
labor  or  service  specified  in  Sec.  3,  and  for  which  the  employer  is 
made  liable  as  specified  in  Sec.  7,  then  the  measure  and  amount  of  com- 
pensation to  be  made  by  the  employer  to  such  workman  or  his  personal 
representative  for  such  injuries,  shall  be  as  follows: 

1.  If  the  injury  by  accident  does  not  result  in  death  within  six 
months  from  the  date  of  the  accident,  but  does  produce  or  result  in  total 
incapacity  of  the  workman  for  work  at  any  gainful  employment  for  more 
than  two  (2)  weeks  after  the  accident  then  the  compensation  to  be  made 
to  such  workman  by  his  employer  shall  be  a  semi-monthly  payment 
commencing  from  the  date  of  the  accident  and  continuing  during  such 
total  incapacity,  of  a  sum  equal  to  fifty  (50)  per  centum  of  the  work- 
man's average  semi-monthly  earnings  when  at  work  on  full  time  during 
the  preceding  year,  if  he  shall  have  been  in  the  employment  of  such 
employer  for  such  length  of  time;  but  if  not  for  a  full  year,  then  fifty 
(50)  per  centum  of  the  average  wages,  whether  semi-monthly,  weekly, 
or  daily,  being  earned  by  such  workman  during  the  time  he  was  at 
work  for  his  employer  before  and  at  the  time  of  the  accident. 

2.  In  case  (1)  the  accident  does  not  wholly  incapacitate  the  workman 
from  the  same  or  other  gainful  employment;  or  (2)  in  case  the  work- 
man, being  at  first  wholly  incapacitated,  thereafter  recovers  so  as  to  be 
able  to  engage  at  labor  in  the  same  or  other  gainful  employment,  thereby 
earning  wages,  then  in  each  case  the  amount  of  the  semi-monthly  pay- 
ment shall  be  one-half  of  the  difference  between  the  average  earnings 
of  the  workman  at  the  time  of  the  accident  determined  as  above  provided, 
and  the  average  amount  he  is  earning,  or  is  capable  of  earning,  there- 
after, semi-monthly  in  the  same  or  other  employment  —  it  being  the 
intent  and  purpose  of  this  Act,  that  the  semi-monthly  payments  shall 
not  exceed,  but  equal,  from  time  to  time  one-half  the  difference  between 
the  amount  of  average  earnings  ascertained  as  aforesaid  at  the  time  of 
the  accident,  and  the  average  amount  which  the  workman  is  earning, 
or  is  capable  of  earning,  in  the  same  or  other  emplojmnent  or  otherwise, 


167 

after  the  accident,  and  at  the  time  of  such  semi-monthly  payment. 
Such  payments  shall  cease  upon  the  workman  recovering  and  earning, 
or  being  capable  of  earning,  in  the  same  or  other  gainful  employment 
or  otherwise,  wages  equal  to  the  amount  being  earned  at  the  time  of  the 
accident. 

Provided,  However,  that  the  payments  shall  continue  to  be  made  as 
herein  determined  to  the  workman  so  long  as  incapacity  to  earn  wages 
in  the  same  or  other  emplo3anent  continues,  but  in  no  case  shall  the 
total  amount  of  such  paj^ments  as  provided  in  sub-sections  1  and  2  of 
this  section  exceed  Four  Thousand  (14,000.00)  Dollars. 

3.  When  the  death  of  the  workman  results  from  the  accident  within 
six  months  thereafter,  and  the  workman,  at  the  time  of  his  death, 
leaves  a  widow,  and  a  minor  child,  or  children  dependent  on  such  work- 
man's earnings  for  support  and  education,  then  the  employer  shall  pay 
to  the  personal  representative  of  the  deceased  workman  for  the  exclusive 
benefit  of  such  widow  and  child,  or  children,  a  sum  equal  to  twenty- 
four  hundred  times  one-half  the  daily  wages  or  earnings  of  the  decedent, 
determined  as  aforesaid,  but  in  no  event  more  than  the  sum  of  Four 
Thousand  Dollars  (Jf 4,000. 00).  Such  sum  shall  be  paid  in  lump  and  held 
in  trust  by  such  representative  for  such  widow  and  children  and  applied 
by  him  to  the  support  of  the  widow  while  she  remains  unmarried,  and 
to  the  support  and  education  of  the  children  so  long  as  necessary,  and 
until  eighteen  (18)  years  of  age,  in  such  way  and  manner  as  to  him  shall 
seem  best  and  just,  under  and  in  accordance  with  the  directions  of  the 
court  having  jurisdiction  of  the  estate  of  the  decedent;  any  balance 
remaining  unapplied  at  the  closing  of  the  estate  of  the  decedent  shall 
be  distributed  to  the  decedent's  widow  (if  still  his  widow),  and  the 
children  or  next  of  kin,  as  provided  by  the  law  of  descents.  The  personal 
representative  may  pay  out  of  said  fund  the  reasonable  and  necessary 
expenses  of  medical  attendance  and  burial  of  the  decedent.  If  the  work- 
man leaves  no  widow  or  child,  or  children,  but  a  father  or  mother  or 
sister  dependent  on  him  for  support,  then  said  sum  shall  be  for  their 
benefit  to  be  applied  as  above  provided.  If  the  deceased  workman 
leaves  no  widow,  children,  or  other  dependents,  then  the  employer  shall 
pay  the  reasonable  expenses  of  medical  attendance  upon  the  decedent 
and  also  provide  and  secure  his  burial  in  a  proper  cemetery,  which  may 
be  chosen  by  the  friends  of  the  decedent. 

Sec.  9.  Any  workman  claiming  compensation  under  the  provisions 
of  this  Act  shall,  if  requested  by  the  employer,  or  upon  written  notice 
by  him  given  to  the  employer,  submit  himself  for  bodily  examination 
by  some  competent  licensed  medical  practitioner  or  surgeon  of  the 
county  in  which  the  workman  then  resides,  to  ascertain  and  determine 
the  nature,  character,  extent,  and  effect  of  the  injury  to  such  work- 
man at  the  time  of  such  examination  for  the  purpose  of  ascertaining 
the  semi-monthly  compensation  then  and  thereafter  to  be  made.  The 
employer  or  the  workman  not  having  requested  the  examination  may 


168 

have-  present  at  the  examination  a  medical  representative  by  him  chosen. 
Each  party  shall  pay  his  chosen  representative  the  expenses  of  such 
examination.  The  said  notice  shall  be  given  at  least  ten  (10)  days 
before  the  date  fixed  for  the  examination,  and  the  place  shall  be  con- 
venient for  the  workman  to  be  examined.  In  case  the  employer  is 
a  corporation,  the  notice  may  be  served  on  any  officer  or  agent  thereof 
in  the  said  county,  and  if  none  there,  then  elsewhere  in  the  State.  The 
examiner  shall  make  a  verified  report  in  writing  in  duplicate  within  ten 
(10)  days  after  the  examination  and  furnish  one  copy  to  the  employer 
and  one  to  the  workman.  If  any  workman  neglects  or  refuses  to  submit 
to  an  examination,  his  right  to  compensation,  if  any,  shall  be  suspended 
until  he  notifies  the  employer  in  writing  of  his  readiness  to  submit  thereto. 
No  persons  other  than  the  physicians  and  surgeons  aforesaid  shall 
attend  any  examination  except  by  agreement  of  the  parties.  If  the 
employer  and  the  workman  each  have  an  examiner,  and  they  shall  agree 
upon  and  join  in  a  report,  the  same  shall  be  conclusive  so  long  as  it  re- 
mains in  force.  If  either  the  employer  or  the  employee,  having  oppor- 
tunity, fails  to  provide  an  examiner,  then  the  report  of  the  examiner 
making  such  examination  shall  likewise  be  conclusive  so  long  as  the  same 
remains  in  force.  If  the  workman  and  the  employer  each  have  an  ex- 
aminer present,  and  they  disagree  as  to  the  nature,  character,  extent,  or 
effect  of  the  injury,  and  the  degree  of  incapacity,  if  any,  for  labor  on  the 
part  of  the  workman  at  the  time  of  such  examination,  then  they  shall  join 
in  a  written  report  stating  the  matters  in  which  they  agree,  and  in  which 
they  disagree,  and  mutually  select  some  disinterested  medical  prac- 
titioner or  surgeon  of  the  county  to  whom  the  same  shall  be  referred, 
and  who  shall  proceed  promptly  to  make  an  examination  of  the  work- 
man as  to  the  matters  in  disagreement,  and  the  same  shall  be  conclusive 
so  long  as  such  report  remains  in  force,  which  report  shall  be  made  by 
such  disinterested  examiner  and  verified,  and  a  copy  thereof  furnished 
to  the  employer  and  the  workman.  For  making  such  examination, 
such  examiner  shall  be  entitled  to  a  fee  of  Ten  Dollars  (f  10.00),  to  be 
paid  one-half  by  the  employer  and  one-half  by  the  workman  at  the  time 
of  such  examination.  Such  examination  may  be  required  by  the  work- 
man or  the  employer  at  periods  not  shorter  than  three  months  from 
the  date  of  the  last  examination.  The  report  of  any  examination  shall 
supersede  all  previous  reports.  When  there  is  disagreement  between 
the  examiners  aforesaid,  and  they  cannot  agree  upon  a  third  person  as 
above  provided,  then  it  shall  be  the  duty  of  the  Chairman  of  the 
Board  of  Supervisors  of  the  county,  on  written  notice  of  either  the 
workman  or  employer,  to  appoint  some  licensed  medical  practitioner  or 
surgeon,  who  shall  be  a  resident  of  the  county,  to  make  such  examina- 
tion, and  said  appointee  shall  be  entitled  to  the  same  compensation. 

Sec.  10.  Every  workman  seeking  compensation  under  the  provi- 
sions of  this  Act,  where  the  same  is  not  fatal  or  does  not  render  him 
incompetent  to  give  the  notice,  shall,  within  two  weeks  after  the  day 


169 

of  the  accident,  give  notice  in  writing  to  the  employer,  or  his  repre- 
sentative employing  such  workman,  or  to  the  foreman  or  other  employee 
of  the  employer  under  whom  he  was  working  at  the  time  of  the  accident, 
and  before  the  workman  has  voluntarily  left  the  service  of  the  employer 
and  during  his  disability.  The  notice  shall  state  (l)  the  name  and  ad- 
dress of  such  workman,  (2)  the  date  and  place  of  the  accident,  (3)  and 
state  in  simple  words  the  cause  thereof,  (4)  the  nature  and  degree  of  the 
injury  sustained,  (5)  and  that  compensation  is  claimed  under  this  Act. 
The  notice  may  be  written  and  served  personally  by  the  workman  or 
by  any  one  in  his  behalf  on  any  person  named  above  in  this  section, 
or  by  mail,  postpaid,  to  such  person,  addressed  to  the  office,  place  of 
business  or  residence  of  the  person  notified.  No  want  or  defect  or  inac- 
curacy of  the  notice  shall  be  a  bar  to  the  right  of  the  workman  to 
claim  and  receive  compensation  under  this  Act,  or  to  maintain  any 
proceeding  to  secure  the  same,  unless  the  employer  proves  that  he  has 
been  seriously  prejudiced  by  such  lack  of  notice.  No  compensation 
shall  be  claimed  or  allowed  so  long  as  such  notice  is  not  given.  If  the 
workman  is  killed,  or  otherwise  rendered  incompetent  to  give  the  notice, 
the  same  is  not  hereby  required,  nor  is  any  notice  required  to  be  given 
by  the  personal  representative  of  such  deceased  person.  It  shall  be  the 
duty  of  any  one  giving  a  notice  as  in  this  section  provided,  to  mail  a 
dupUcate  copy  to  the  Attorney  General  of  this  State. 

Sec.  11.  Any  question  which  may  arise  between  the  employer  and 
the  workman  or  his  personal  representative,  under  this  Act,  shall  be 
determined  either  (1)  by  written  agreement  between  the  parties,  or  (2) 
by  arbitration,  or  (3)  by  reference  and  submission  to  the  Attorney 
General  of  this  State;  and  in  case  of  a  refusal  or  faihire  of  the  employer 
and  workman,  or  such  personal  representative,  to  agree  upon  a  settle- 
ment by  either  of  the  modes  above  provided,  then  by  a  civil  action  at 
law,  showing  such  refusal  or  failure  as  a  reason  for  suit.  If  any  employer 
fails  to  make  and  pay  compensation,  as  in  this  Act  provided,  for  a  period 
of  three  months  after  the  date  of  the  accident,  or  for  any  two  months 
or  more  after  payment  of  the  last  monthly  compensation,  then  the  injured 
workman,  if  surviving,  or  the  personal  representative,  in  case  of  death, 
may  bring  an  action  in  any  court  of  competent  jurisdiction  to  recover  and 
enforce  the  compensation  herein  provided.  Such  action  shall  be  conducted 
as  near  as  may  be  in  the  same  manner  as  other  civil  actions  at  law.  The 
action  shall  be  brought  within  one  year  after  the  happening  of  the  acci- 
dent, or  after  the  non-payment  of  any  semi-monthly  installment  there- 
tofore fixed  by  agreement  or  otherwise;  or  within  one  year  after  the  ap- 
pointment of  a  personal  representative  of  the  decedent.  The  judgment 
in  such  action,  when  in  favor  of  the  plaintiff,  shall  be  for  a  sum  equal 
to  the  amount  of  payments  then  due  and  prospectively  due  under  the 
provisions  of  this  Act.  The  judgment  shall  be  for  the  total  amount  thereof 
and  collectible  without  relief  from  valuation  or  appraisement  laws.  And 
the  court  awarding  the  judgment  shall,  by  proper  order,  direct  that  the 


170 

same  shall  be  paid  ratably  to  the  workman,  if  living,  in  semi-monthly 
installments  until  the  determination  of  the  periods  provided  in  this  Act 
the  same  as  if  such  payments  were  being  made  voluntarily  or  without 
suit  in  conformity  with  this  Act.  The  judgment  by  agreement,  if  it 
appears  to  the  court  to  be  for  the  best  interests  of  the  workman,  may 
be  paid  in  lump  and  not  otherwise.  The  court  rendering  the  judgment 
is  hereby  given  power  from  time  to  time  to  make  such  orders  touching 
the  matter  of  payments  as  may  appear  best  to  provide  for  the  maintenancfr 
and  support  of  the  workman  and  his  family  during  his  infirmity,  and 
for  his  and  their  benefit  and  security.  The  employer  shall  have  the  right 
to  stay  the  judgment  in  whole,  whether  the  same  is  to  be  paid  in  lump 
sum  or  monthly  installments,  upon  securing  the  same  by  one  or  more 
freehold  sureties  or  a  surety  company,  to  be  approved  by  the  court 
rendering  the  judgment,  who  shall  enter  into  a  recognizance  acknowl- 
edging themselves  bound  for  the  defendant  for  the  payment  of  the  judg- 
ment in  lump  or  in  partial  payments  as  the  same  is,  or  shall  be  made,, 
payable,  together  with  interest  and  costs.  On  failure  of  any  one  or  more 
of  such  payments  by  the  employer,  execution  may  issue  out  of  said  court, 
and  cause,  against  such  defendant,  and  his  bail  from  time  to  time  levi- 
able and  collectible  without  relief  from  valuation  or  appraisement  or 
stay  laws.  The  recognizance  shall  be  written  upon  the  order  book  of 
the  court  and  immediately  following  the  entry  of  the  judgment  and  signed 
by  such  bail  and  docketed  in  the  judgment  docket  of  the  court  against 
such  defendant  and  bailors,  which  shall  bind  the  property  of  the  same- 
in  the  same  manner  as  the  judgment  binds  the  property  of  the  employer.. 
In  an  action  by  a  personal  representative  of  a  deceased  workman,  the- 
court  shall  determine  the  proportions  of  the  judgment,  whether  in  lump 
or  in  installments,  to  be  distributed  between  the  widow  and  child,  or 
children,  with  power  to  alter  and  amend  the  proportionment  from 
time  to  time  on  petition  of  any  party  interested  as  the  court  may  deem 
best  for  the  support,  maintenance,  and  education  of  such  widow  and 
children. 

In  any  action  under  this  Act  the  court  shall  fix  and  allow,  at  the  time- 
of  entering  the  judgment  against  the  employer,  a  reasonable  fee  to  the- 
workman's  attorney,  to  be  taxed  against  the  employer  as  costs,  and 
collectible  in  the  same  manner.  From  such  allowance  there  shall  be  no 
right  of  appeal.  Such  attorney  shall  have  no  claim  for  compensation 
upon  the  judgment  or  its  proceeds,  other  than  as  herein  provided.  But 
no  allowance,  or  any  fee  payable  by  the  workman  to  an  attorney  for 
services,  or  any  fee  payable  by  the  workman  to  an  attorney  for  services 
in  securing  a  recovery  or  disbursement,  shall  ever  exceed  twenty-five 
(25)  per  centum  of  the  principal  of  the  sum  recovered;  and  the  same- 
shall  not  be  made  a  lien  on  the  recovery  of  its  proceeds,  except  as  may 
be  determined  and  allowed  and  fixed  by  the  court. 

Sec.  12.  Any  workman  entitled  to  monthly  or  other  payments  from, 
or  to  any  judgment  against  any  employer  as  above  provided,  as  com- 


171 

pensation  shall  have  the  same  preferential  claim  therefor  against  the 
property  and  assets  of  the  employer  and  any  bailor,  as  now  is  allowed 
by  law  for  unpaid  wages  or  personal  services.  No  judgment  or  any  part 
thereof,  nor  monthly  pa^mients  due,  or  coming  due,  under  this  Act  shall 
be  assignable  by  the  workman  or  subject  to  mortgage,  levy,  execution, 
or  attachment.  But  the  same  shall  stand  as  a  continuing  provision  for 
the  maintenance  and  support  of  such  injured  workman  during  his  in- 
capacity for  the  periods  provided  in  this  Act. 

Sec.  13.  In  case  an  injured  workman,  having  a  right  of  action  under 
the  provisions  of  this  Act,  shall  be  mentally  incompetent  at  the  time 
when  any  right  or  privilege  accrues  thereunder  to  him,  a  guardian  may 
be  appointed  by  any  court  having  jurisdiction,  to  secure  and  protect 
the  rights  of  such  workman;  and  the  guardian  may  claim  and  exercise 
any  and  all  of  such  rights  and  privileges  with  the  same  force  and  effect 
as  if  the  workman  himself  had  been  competent  and  had  claimed  or  ex- 
ercised any  such  right  or  privilege;  and  no  limitation  of  time  provided 
in  any  of  the  foregoing  sections  shall  run  so  long  as  said  incompetent 
workman  has  no  guardian. 

Sec.  14.  This  Act  shall  take  effect  on  the  1st  day  of  September, 
1912;  and  ten  days  from  and  thereafter,  it  shall  be  taken  and  held  in 
law  that  all  workmen  then  in  the  employ,  and  all  workmen  afterwards 
employed  by  an  employer  at  manual  and  mechanical  labor  of  the  kinds 
defined  in  Sec.  3  of  this  Aet,  are  employed  and  working  under  this  Act, 
and  the  employer  and  workman  shall  alike  be  bound  by  and  shall  have 
each  and  every  benefit  and  right  given  in  this  Act  the  same  as  if  a  mutual 
contract  to  that  effect  were  entered  into  between  the  employer  and  the 
workman  at  any  time  before  the  happening  of  the  accident.  It  shall 
be  lawful,  however,  for  the  employer  or  workman  to  disaffirm  an  em- 
ployment under  the  provisions  of  this  Act  by  written  contract  between 
them,  or  by  written  notice  by  one  to,  and  served  upon,  the  other  to  that 
effect  before  the  day  of  the  accident; 

Provided,  such  written  contract  does  not  provide  for  less  compensation 
than  as  provided  by  this  Act.  And  in  the  absence  of  such  written  con- 
tract or  written  notice,  served  as  above  provided,  it  shall  be  taken  and 
held  that  the  employment  and  service  is  under  this  Act;  and  the  same 
shall  be  the  sole  measure  of  their  respective  rights  and  liabilities  when 
and  as  provided  in  this  Act; 

Provided,  if,  after  the  accident,  either  the  employer  or  the  workman 
shall  refuse  to  make  or  accept  compensation  under  this  Act  or  to  pro- 
ceed under  or  rely  upon  the  provisions  hereof  for  relief,  then  the  other 
may  pursue  his  remedy  or  make  his  defense  under  other  existing  statutes, 
the  State  Constitution,  or  the  common  law,  except  as  herein  provided, 
as  his  rights  may  at  the  time  exist.  Any  suit  brought  by  the  workman 
for  a  recovery  shall  be  held  as  an  election  to  pursue  such  remedy 
exclusively. 

Sec.  15.    Any  employer  employing  workman  (workmen)  to  perform 


172 

labor  or  services  of  other  kinds  than  as  defined  in  this  Act,  and  such 
workmen  and  employees  may,  by  agreement,  at  any  time  during  the 
employment,  accept  and  adopt  the  provisions  of  this  Act  as  to  liability 
for  accident,  compensation,  and  the  methods  and  means  of  paying  and 
securing  and  enforcing  the  same.  And  in  every  such  case  the  provisions 
of  this  Act  shall  be  taken  in  law  and  fact  to  bind  the  parties  as  fully  as 
if  they  were  specifically  mentioned  and  embraced  in  the  provisions  of 
this  Act. 

Sec.  16.  This  Act  is  remedial  in  its  purpose  and  shall  be  construed 
and  applied  so  as  to  secure  promptly  and  without  burdensome  expense 
to  the  workmen  the  compensation  herein  provided  and  apportioned  so 
as  to  provide  support  during  the  periods  named  for  the  loss  of  ability 
to  earn  full  wages. 

Sec.  17,  Nothing  in  this  Act  shall  be  deemed  or  taken  to  repeal 
or  affect  in  any  way  any  other  Acts  oi  laws  passed  by  the  First 
Legislature  of  the  State  of  Arizona,  and  as  in  so  far  as  it  refers  to  the 
same  subject  in  other  Acts  it  shall  be  deemed  to  be  accumulative  only. 

Approved  June  8,  1912. 


CALIFORNIA. 
Laws  of  1911,  Chapter  399. 

An  Act  relating  to  the  Liability  of  Employers  for  Injuries  or 
Death  sustained  by  their  Employees,  providing  for  Compensa- 
tion FOR  THE  Accidental  Injury  of  Employees,  establishing  an 
Industrial  Accident  Board,  making  an  Appropriation  therefor, 
defining  its  Powers  and  providing  for  a  Review  of  its  Awards. 
The  people  of  the  State  of  California,  represented  in  senate  and  assembly, 
do  enact  as  follows: 
Section  1.    In  any  action  to  recover  damages  for  a  personal  injury 
sustained  within  this  state  by  an  employee  while  engaged  in  the  line  of 
his  duty  or  the  course  of  his  employment  as  such,  or  for  death  resulting 
from  personal  injury  so  sustained,  in  which  recovery  is  sought  upon  the 
ground  of  want  of  ordinary  or  reasonable  care  of  the  employer,  or  of  any 
officer,  agent  or  servant  of  the  employer,  the  fact  that  such  employee 
may  have  been  guilty  of  contributory  negligence  shall  not  bar  a  recovery 
therein  where  his  contributory  negligence  was  slight  and  that  of  the  em- 
ployer was  gross,  in  comparison,  but  the  damages  may  be  diminished  by 
the  jury  in  proportion  to  the  amount  of  negligence  attributable  to  such 
employee,  and  it  shall  be  conclusively  presumed  that  such  employee  was 
not  guilty  of  contributory  negligence  in  any  case  where  the  violation  of 
any  statute  enacted  for  the  safety  of  employees  contributed  to  such  em- 
ployee's  injury;  and  it  shall  not  be  a  defense: 

(1)  That  the  employee  either  expressly  or  impliedly  assumed  the  risk 
of  the  hazard  complained  of. 


173 

(2)  That  the  injury  or  death  was  caiised  in  whole  or  in  part  by  the 
want  of  ordinary  or  reasonable  care  of  a  fellow  servant. 

Sec.  2.  No  contract,  rule  or  regulation,  shall  exempt  the  employer 
from  any  of  the  provisions  of  the  preceding  section  of  this  act. 

Sec.  3.  Liability  for  the  compensation  hereinafter  provided  for,  in 
lieu  of  any  other  liability  whatsoever,  shall,  without  regard  to  negligence, 
exist  against  an  employer  for  any  personal  injury  accidentally  sustained 
by  his  employees,  and  for  his  death  if  the  injury  shall  approximately 
cause  death,  in  those  cases  where  the  following  conditions  of  compensation 
concur: 

(1)  Where,  at  the  time  of  the  accident,  both  the  employer  and  employee 
are  subject  to  the  provisions  of  this  act  according  to  the  succeeding  sec- 
tions hereof. 

(2)  Where,  at  the  time  of  the  accident,  the  employee  is  performing^ 
service  growing  out  of  and  incidental  to  his  employment  and  is  acting 
within  the  line  of  his  duty  or  course  of  his  employment  as  such. 

(3)  Where  the  injury  is  approximately  caused  by  accident,  either  with 
or  without  negligence,  and  is  not  so  caused  by  the  wilful  misconduct  of 
the  employee. 

And  where  such  conditions  of  compensation  exist  for  any  personal 
injury  or  death,  the  right  to  the  recovery  of  such  compensation  pursuant 
to  the  provisions  of  this  act,  and  acts  amendatory  thereof,  shall  be  the 
exclusive  remedy  against  the  employer  for  such  injury  or  death,  except 
that  when  the  injury  was  caused  by  the  personal  gross  negligence  or 
wilful  personal  misconduct  of  the  employer,  or  by  reason  of  his  violation 
of  any  statute  designed  for  the  protection  of  employees  from  bodily  in- 
jury, the  employee  may,  at  his  option,  either  claim  compensation  under 
this  act,  or  maintain  an  action  for  damages  therefor;  in  all  other  cases  the 
liability  of  the  employer  shall  be  the  same  as  if  this  and  the  succeeding 
sections  of  this  act  had  not  been  passed,  but  shall  be  subject  to  the  pro- 
visions of  the  preceding  sections  of  this  act. 

Sec.  4.  The  following  shall  constitute  employers  subject  to  the  pro- 
visions of  this  act  within  the  meaning  of  the  preceding  section: 

(1)  The  state,  and  each  county,  city  and  county,  city,  town,  village 
and  school  districts  and  all  public  corporations,  every  person,  firm,  and 
private  corporation,  (including  any  public  service  corporation)  who  has 
any  person  in  service  under  any  contract  of  hire,  express  or  implied,  oral 
or  written,  and  who,  at  or  prior  to  the  time  of  the  accident  to  the  employee 
for  which  compensation  under  this  act  may  be  claimed,  shall,  in  the 
manner  provided  in  the  next  section,  have  elected  to  become  subject  to 
the  provisions  of  this  act,  and  who  shall  not,  at  the  time  of  such  accident, 
have  withdrawn  such  election,  in  the  manner  provided  in  the  next  sec- 
tion. 

Sec.  5.  Such  election  on  the  part  of  the  employer  shall  be  made  by 
filing  with  the  industrial  accident  board,  hereinafter  provided  for  a  writ- 
ten statement  to  the  effect  that  he  accepts  the  provisions  of  this  act,  the 


174 

filing  of  which  statement  shall  operate,  within  the  meaning  of  section 
three  of  this  act,  to  subject  such  employer  to  the  provisions  of  this  act 
and  all  acts  amendatory  thereof  for  the  term  of  one  year  from  the  date  of 
the  fiUng  of  such  statement,  and  thereafter,  without  further  act  on  his 
part,  for  successive  terms  of  one  year  each,  unless  such  employer  shall, 
at  least  sixty  days  prior  to  the  expiration  of  such  first  or  any  succeeding 
year,  file  in  the  office  of  said  board  a  notice  in  writing  to  the  effect  that 
he  withdraws  his  election  to  be  subject  to  the  provisions  of  the  act. 

Sec.  6.  The  term  "employee"  as  used  in  section  three  of  this  act 
shall  be  construed  to  mean: 

(1)  Every  person  in  the  service  of  the  state,  or  any  county,  city  and 
county,  city,  town,  village  or  school  district  therein,  and  all  public  cor- 
porations, under  any  appointment  or  contract  of  hire,  express  or  imphed, 
oral  or  written,  except  any  official  of  the  state,  or  of  any  county,  city  and 
county,  city,  town,  village  or  school  district  therein  or  any  public  cor- 
poration, who  shall  have  been  elected  or  appointed  for  a  regular  term  of 
one  or  more  years,  or  to  complete  the  unexpired  portion  of  any  such  regu- 
lar term. 

(2)  Every  person  in  the  service  of  another  under  any  contract  of 
hire,  express  or  implied,  oral  or  written,  including  aliens,  and  also  includ- 
ing minors  who  are  legally  permitted  to  work  under  the  laws  of  the  state, 
(who,  for  the  purposes  of  the  next  section  of  this  act,  shall  be  considered 
the  same  and  shall  have  the  same  power  of  contracting  as  adult  em- 
ployees,) but  not  including  any  person  whose  employment  is  but  casual 
and  not  in  the  usual  course  of  the  trade,  business,  profession  or  occupa- 
tion of  his  employer. 

Sec.  7.  Any  employee  as  defined  in  subsection  (1)  of  the  preceding 
section  shall  be  subject  to  the  provisions  of  this  act  and  of  any  act  amenda- 
tory thereof.  Any  employee  as  defined  in  subsection  (2)  of  the  preced- 
ing section  shall  be  deemed  to  have  accepted  and  shall,  within  the  meaning 
of  section  3  of  this  act  be  subject  to  the  provisions  of  this  act  and  of  any 
act  amendatory  thereof,  if,  at  the  time  of  the  accident  upon  which  liabil- 
ity is  claimed: 

(1)  The  employer  charged  with  such  liability  is  subject  to  the  provi- 
sions of  this  act,  whether  the  employee  has  actual  notice  thereof  or  not; 
and 

(2)  At  the  time  of  entering  into  his  contract  of  hire,  express  or  implied, 
with  such  employer,  such  employee  shall  not  have  given  to  his  employer 
notice  in  writing  that  he  elects  not  to  be  subject  to  the  provisions  of  this 
act,  or,  in  the  event  that  such  contract  of  hire  was  made  in  advance  of 
such  employer  becoming  subject  to  the  provisions  of  the  act,  such  employee 
shall,  without  giving  such  notice,  remain  in  the  service  of  such  employer 
for  thirty  days  after  the  employer  has  filed  with  said  board  an  election 
to  be  subject  to  the  terms  of  this  act. 

Sec.  8.  Where  Uability  for  compensation  under  this  act  exists  the 
same  shall  be  as  provided  in  the  following  schedule: 


175 

(1)  Such  medical  and  surgical  treatment,  medicines,  medical  and  sur- 
gical supplies,  crutches  and  apparatus,  as  may  be  reasonably  required  at 
the  time  of  the  injury  and  thereafter  during  the  disability,  but  not  exceed- 
ing ninety  days,  to  cure  and  relieve  from  the  effects  of  the  injury,  the  same 
to  be  provided  by  the  employer,  and  in  case  of  his  neglect  or  refusal 
seasonably  to  do  so,  the  employer  to  be  Uable  for  the  reasonable  expense 
incurred  by  or  on  behalf  of  the  employee  in  providing  the  same;  pro- 
vided, however,  that  the  total  UabiUty  under  this  subdivision  shall  not 
€xceed  the  sum  of  $100.00. 

(2)  If  the  accident  causes  disabiUty,  an  indemnity  which  shall  be  pay- 
able as  wages  on  the  eighth  day  after  the  injured  employee  leaves  work 
as  the  result  of  the  injury,  and  weekly  thereafter,  which  weekly  indemnity 
shall  be  as  follows: 

(a)  If  the  accident  causes  total  disability,  sixty-five  per  cent  of  the 
average  weekly  earnings  during  the  period  of  such  total  disabiUty;  'pro- 
vided, that  if  the  disability  is  such  as  not  only  to  render  the  injured 
■employee  entirely  incapable  of  work,  but  also  so  helpless  as  to  require 
the  assistance  of  a  nurse,  the  weekly  indemnity  during  the  period  of 
such  assistance  shall  be  increased  to  one  hundred  per  cent  of  the  average 
weekly  earnings. 

(6)  If  the  accident  causes  partial  disabiUty,  sixty-five  per  cent  of  the 
weekly  loss  in  wages  during  the  period  of  such  partial  disabiUty. 

(c)  If  the  disability  caused  by  the  accident  is  at  times  total  and  at 
times  partial,  the  weekly  indemnity  during  the  periods  of  each  such  total 
or  partial  disabiUty  shaU  be  in  accordance  with  said  subsections  (o)  and 
(6),  respectively. 

id)  Said  subsections  (a),  (6)  and  (c)  shall  be  subject  to  the  following 
limitations: 

Aggregate  disabiUty  indemnity  for  a  single  injury  shaU  not  exceed 
three  times  the  average  annual  earnings  of  the  employee. 

If  the  period  of  disabUity  does  not  last  more  than  one  week  from  the 
day  the  employee  leaves  work  as  the  result  of  the  accident  no  indemnity 
whatever  shaU  be  recoverable. 

If  the  period  of  disabiUty  lasts  more  than  one  week  from  the  day  the 
employee  leaves  work  as  the  result  of  the  accident,  no  indemnity  shall  be 
recoverable  for  the  first  week  of  the  period  of  such  disability. 

The  aggregate  disability  period  shall  not,  in  any  event  extend  beyond 
fifteen  years  from  the  date  of  the  accident. 

(3)  The  death  of  the  injured  employee  shaU  not  affect  the  obUgation 
of  the  employer  under  subsections  (1)  and  (2)  of  this  section,  so  far  as 
his  UabiUty  shall  have  accrued  and  become  payable  at  the  time  of  the 
death,  but  the  death  shaU  be  deemed  the  termination  of  disabiUty,  and 
the  employer  shaU  thereupon  be  Uable  for  the  foUowing  death  benefits 
in  Ueu  of  any  further  disability  benefits;  provided,  that  such  death  was 
approximately  caused  by  the  accident  causing  such  disabiUty: 

(a)  In  case  the  deceased  employee  leaves  a  person  or  persons  wholly 


176 

dependent  upon  him  for  support,  the  death  benefit  shall  be  a  sum  suffi- 
cient when. added  to  the  benefits  which  shall,  at  the  time  of  death,  have 
accrued  and  become  payable  under  the  provisions  of  subsection  (2)  of 
this  section  to  make  the  total  compensation  for  the  injury  and  death, 
exclusive  of  the  benefit  provided  for  in  subsection  (1),  equal  to  three 
times  his  annual  average  earnings,  not  less  than  $1,000  nor  more  than 
$5,000,  the  same  to  be  payable,  unless  and  until  the  industrial  accident 
board  shall  otherwise  direct,  in  weekly  installments  corresponding  in 
amount  to  the  weekly  earnings  of  the  employee. 

(6)  In  case  the  deceased  employee  leaves  no  one  wholly  dependent 
on  him  for  support,  but  one  or  more  persons  partially  dependent  therefor, 
the  death  benefit  shall  be  such  percentage  of  three  times  such  average 
annual  earnings  of  the  employee  as  the  annual  amount  devoted  by  the 
deceased  to  the  support  of  the  person  or  persons  so  partially  dependent 
upon  him  for  support  bears  to  such  average  earnings,  the  same  to  be  pay- 
able, unless  and  until  the  industrial  accident  board  shall  otherwise  direct, 
in  weekly  installments  corresponding  to  the  weekly  earnings  of  the  em- 
ployee; provided,  that  the  total  compensation  for  the  injury  and  death, 
exclusive  of  the  benefit  provided  for  in  said  subsection  (1)  shall  not 
exceed  three  times  such  average  annual  earnings. 

(c)  In  the  event  that  the  accident  shall  have  approximately  caused 
permanent  disability,  either  total  or  partial,  and  the  employee  shall  die 
within  fifteen  years  after  the  date  of  the  accident,  liability  for  the  death 
benefits  provided  for  in  said  subsections  (a)  and  (b)  respectively  shall 
exist  only  where  the  accident  was  the  approximate  cause  of  death  within 
said  period  of  fifteen  years. 

(d)  If  the  deceased  employee  leaves  no  person  dependent  upon  him 
for  support,  and  the  accident  approximately  causes  death,  the  death 
benefit  shall  consist  of  the  reasonable  expenses  of  his  burial  not  exceed- 
ing $100. 

Sec.  9.  (1)  The  weekly  earning  referred  to  in  section  8  shall  be 
one  fifty-second  of  the  average  annual  earnings  of  the  employee;  average 
annual  earnings  shall  not  be  taken  at  less  than  $333.33,  nor  more  than 
$1,666.66,  and  between  said  limits  shall  be  arrived  at  as  follows: 

(a)  If  the  injured  employee  has  worked  in  such  employment,  whether 
for  the  same  employer  or  not,  during  substantially  the  whole  of  the  year 
immediately  preceding  his  injury,  his  average  annual  earnings  shall  con- 
sist of  three  hundred  times  the  average  daily  wage  or  salary  which  he 
has  earned  as  such  employee  during  the  days  when  so  employed. 

(b)  If  the  injured  employee  has  not  so  worked  in  such  employment 
during  substantially  the  whole  of  such  immediately  preceding  year,  his 
average  annual  earnings  shall  consist  of  three  hundred  times  the  average 
daily  wage  or  salary  which  an  employee  of  the  same  class  working  sub- 
stantially the  whole  of  such  immediately  preceding  year  in  the  same  or 
a  similar  employment  in  the  same  or  a  neighboring  place  shall  have  earned 
during  the  days  when  so  employed. 


177 

(c)  In  cases  where  the  foregoing  methods  of  arriving  at  the  average 
annual  earnings  of  the  injured  employee  can  not  reasonably  and  fairly 
be  applied,  such  annual  earnings  shall  be  taken  at  such  sum  as  having 
regard  to  the  previous  earnings  of  the  injured  employee,  and  of  other 
employees  of  the  same  or  most  similar  class,  working  in  the  same  or  most 
similar  employment  in  the  same  or  neighboring  locality,  shall  reasonably 
represent  the  average  earning  capacity  of  the  injured  employee  at  the 
time  of  the  injury  in  the  employment  in  which  he  was  working  at  such  time. 

(d)  The  fact  that  an  employee  has  suffered  a  previous  disability,  or 
received' compensation  therefor,  shall  not  preclude  him  from  compensa- 
tion for  a  later  injury,  or  for  death  resulting  therefrom,  but  in  determin- 
ing compensation  for  the  later  injury,  or  death  resulting  therefrom,  his 
average  annual  earnings  shall  be  such  sum  as  will  reasonably  represent 
his  annual  earning  capacity  at  the  time  of  the  later  injury,  and  shall  be 
arrived  at  according  to  the  previous  provisions  of  this  section. 

(2)  The  weekly  loss  in  wages  referred  to  in  section  8,  shall  consist  of 
the  difference  between  the  average  weekly  earnings  of  the  injured  em- 
ployee, computed  according  to  the  provisions  of  this  section,  and  the 
weekly  amount  which  the  injured  employee,  in  the  exercise  of  reason- 
able diligence,  will  probably  be  able  to  earn,  the  same  to  be  fixed  as  of 
the  time  of  the  accident,  but  to  be  determined  in  view  of  the  nature  and 
extent  of  the  injury. 

(3)  The  following  shall  be  conclusively  presumed  to  be  solely  and 
wholly  dependent  for  support  upon  a  deceased  employee: 

(a)  A  wife  upon  a  husband. 

(6)  A  husband  upon  a  wife  lipon  whose  earnings  he  is  partially  or 
whoUy  dependent  at  the  time  of  her  death. 

(c)  A  child  or  children  under  the  age  of  eighteen  years  (or  over  said 
age,  but  physically  or  mentally  incapacitated  from  earning),  upon  the 
parent  with  whom  he  or  they  are  living  at  the  time  of  the  death  of  such 
parent,  there  being  no  surviving  dependent  parent.  In  case  there  is 
more  than  one  child  thus  dependent,  the  death  benefit  shall  be  divided 
equally  among  them.  In  all  other  cases  questions  of  entire  or  partial 
dependency  shall  be  determined  in  accordance  with  the  fact,  as  the  fact 
may  be  at  the  time  of  the  death  of  the  employee,  and  in  such  other  cases 
if  there  is  more  than  one  person  wholly  dependent,  the  death  benefit 
shall  be  divided  equally  among  them  and  persons  partially  dependent, 
if  any,  shall  receive  no  part  thereof,  and  if  there  is  more  than  one  person 
partially  dependent,  the  death  benefit  shall  be  divided  among  them  accord- 
ing to  the  relative  extent  of  their  dependency. 

(4)  Questions  as  to  who  constitute  dependents  and  the  extent  of  their 
dependency  shall  be  determined  as  of  the  date  of  the  death  of  the  em- 
ployee, and  their  right  to  any  death  benefit  shall  become  fixed  as  of  such 
time,  irrespective  of  any  subsequent  change  in  conditions,  and  the  death 
benefit  shall  be  directly  recoverable  by  and  payable  to  the  dependent 
or  dependents  entitled  thereto  or  their  legal  guardians  or  trustees. 


178 

Sec.  10.  No  claim  to  recover  compensation  under  this  act  shall  be 
maintained  unless  within  thirty  days  after  the  occurrence  of  the  accident 
which  is  claimed  to  have  caused  the  injury  or  death,  notice  in  writing, 
stating  the  name  and  the  address  of  the  person  injured,  the  time  and  the 
place  where  the  accident  occurred,  and  the  nature  of  the  injury,  and 
signed  by  the  person  injured  or  someone  in  his  behalf,  or  in  case  of  his 
death,  by  a  dependent  or  someone  in  his  behalf,  shall  be  served  upon  the 
employer  by  delivering  to  and  leaving  with  him  a  copy  of  such  notice 
or  by  mailing  to  him  by  registered  mail  a  copy  thereof  in  a  sealed  and 
posted  envelope  addressed  to  him  at  his  last  known  place  of  business  or 
residence.  Such  mailing  shall  constitute  complete  service;  provided, 
however,  that,  any  payment  of  compensation  under  this  act,  in  whole  or 
in  part,  made  by  the  employer  before  the  expiration  of  said  thirty  days 
shall  be  equivalent  to  the  notice  herein  required;  and  provided,  further, 
that  the  failure  to  give  any  such  notice,  or  any  defect  or  inaccuracy  therein, 
shall  not  be  a  bar  to  recovery  under  this  act  if  it  is  foimd  as  a  fact  in  the 
proceedings  for  collections  of  the  claim  that  there  was  no  intention  to 
mislead  the  employer,  and  that  he  was  not  in  fact  misled  thereby;  and 
provided,  further,  that  if  no  such  notice  is  given  and  no  payment  of  com- 
pensation made,  within  one  year  from  the  date  of  the  accident,  the  right 
to  compensation  therefor  shall  be  wholly  barred. 

Sec.  11.  Wherever  in  case  of  injury  the  right  to  compensation  under 
this  act  would  exist  in  favor  of  any  employee,  he  shall,  upon  the  written 
request  of  his  employer,  submit  from  time  to  time  to  examination  by  a 
regular  practicing  physician,  who  shall  be  provided  and  paid  for  by  the 
employer,  and  shall  likewise  submit  to  examination  from  time  to  time  by 
any  regular  physician  selected  by  said  industrial  accident  board,  or  any 
member  or  examiner  thereof.  The  employee  shall  be  entitled  to  have  a 
physician  provided  and  paid  for  by  himself  present  at  any  such  exam- 
ination. So  long  as  the  employee,  after  such  written  request  of  the  em- 
ployer, shall  refuse  to  submit  to  such  examination,  or  shall  in  any  way 
obstruct  the  same,  his  right  to  begin  or  maintain  any  proceeding  for  the 
collection  of  compensation  shall  be  suspended,  and  if  he  shall  refuse  to 
submit  to  such  examination  after  direction  by  the  board,  or  any  member 
or  examiner  thereof,  or  shall  in  any  way  obstruct  the  same,  his  right  to 
the  weekly  indemnity  which  shall  accrue  and  become  payable  during  the 
period  of  such  refusal  or  obstruction,  shall  be  barred.  Any  physician 
who  shall  make  or  be  present  at  any  such  examination  may  be  required 
to  testify  as  to  the  results  thereof. 

Sec.  12.  Any  dispute  or  controversy  concerning  compensation  under 
this  act,  including  any  in  which  the  state  may  be  a  party,  shall  be  sub- 
mitted to  a  board  consisting  of  three  members,  which  shall  be  known  as 
the  industrial  accident  board.  Within  thirty  days  before  this  act  shall 
take  effect,  the  governor,  by  and  with  the  advice  and  consent  of  the  sen- 
ate, shall  appoint  a  member  who  shall  serve  two  years,  and  another  who 
shall  serve  three  years,  and  another  who  shall  serve  four  years.    There- 


179 

after  such  three  members  shall  be  appointed  and  confirmed  for  terms  of 
four  years  each.  Vacancies  shall  be  filled  in  the  same  manner  for  the 
unexpired  term.  Each  member  of  the  board,  before  entering  upon  the 
duties  of  his  office,  shall  take  the  oath  prescribed  by  the  constitution. 
A  majority  of  the  board  shall  constitute  a  quorum  for  the  exercise  of  any 
of  the  powers  or  authority  conferred  by  this  act,  and  an  award  by  a  ma- 
jority shall  be  valid.  In  case  of  a  vacancy,  the  remaining  two  members 
of  the  board  shall  exercise  all  the  powers  and  authority  of  the  board  until 
such  vacancy  is  filled.  Each  member  of  the  board  shall  receive  an  annual 
salary  of  three  thousand  six  hundred  dollars. 

Sec.  13.  The  board  shall  organize  by  choosing  one  of  its  members 
ks  chairman.  Subject  to  the  provisions  of  this  act,  it  may  adopt  its 
oym  rules  of  procedure  and  may  change  the  same  from  time  to  time  in 
its  discretion.  The  board,  when  it  shall  deem  it  necessary  to  expedite 
its  business,  may  from  time  to  time  employ  one  or  more  expert  examiners 
for  such  length  of  time  as  may  be  required.  It  may  also  appoint  a  secre- 
tary and  such  clerical  help  as  it  may  deem  necessary.  It  shall  fix  the 
compensation  of  all  assistants  so  appointed. 

Sec.  14.  The  board  shall  keep  its  office  at  the  city  of  San  Francisco, 
and  shall  be  provided  by  the  secretary  of  state  with  a  suitable  room  or 
rooms,  necessary  office  furniture,  stationery,  and  other  suppUes.  The 
members  of  the  board  and  its  assistants,  shall  be  entitled  to  receive  from 
the  state  their  actual  and  necessary  expenses  while  traveling  on  the  busi- 
ness of  the  board,  but  such  expenses  shall  be  sworn  to  by  the  person  who 
incurred  the  same,  and  be  approved  by  the  chairman  of  the  board,  before 
payment  is  made.  All  salaries  and  expenses  authorized  by  this  act  shall 
be  audited  and  paid  out  of  the  general  funds  of  the  state  the  same  as 
other  general  state  expenses  are  audited  and  paid. 

Sec.  15.  Upon  the  filing  with  the  board  by  any  party  in  interest  of 
an  application  in  writing  stating  the  general  nature  of  any  dispute  or 
controversy  concerning  compensation  under  this  act,  it  shall  fix  a  time 
for  the  hearing  thereof,  which  shall  not  be  more  than  forty  days  after 
the  fifing  of  such  appUcation.  The  board  shall  cause  notice  of  such  hear- 
ing to  be  given  to  each  party  interested  by  service  of  such  notice  on  him 
personally  or  by  mailing  a  copy  thereof  to  him  at  his  last  known  post 
office  address  at  least  ten  days  before  such  hearing.  Such  hearing  may 
be  adjourned  from  time  to  time  in  the  discretion  of  the  board,  and  hear- 
ings shall  be  held  at  such  places  as  the  board  shall  designate.  Either 
party  shall  have  the  right  to  be  present  at  any  hearing,  in  person  or  by 
attorney  or  any  other  agent,  and  to  present  such  testimony  as  shall  be 
pertinent  to  the  controversy  before  the  board,  but  the  board  may,  with 
or  without  notice  to  either  party,  cause  testimony  to  be  taken,  or  inspec- 
tion of  the  premises  where  the  injury  occurred  to  be  had,  or  the  time  books 
and  payroll  of  the  employer  to  be  examined  by  any  member  of  the  board 
or  any  examiner  appointed  by  it,  and  may  from  time  to  time,  direct  any 
employee  claiming  compensation  to  be  examined  by  a  regular  physician; 


180 

the  testimony  so  taken,  and  the  results  of  any  such  inspection  or  examina- 
tion, to  be  reported  to  the  board  for  its  consideration  upon  final  hearing. 
The  board,  or  any  member  thereof,  or  any  examiner  appointed  thereby 
shall  have  power  and  authority  to  issue  subpoenas  to  compel  the  attend- 
ance of  witnesses  or  parties,  and  the  production  of  books,  papers,  or 
records,  and  to  administer  oaths.  Obedience  to  such  subpoenas  shall  be 
enforced  by  the  superior  court  of  any  county,  or  city  and  county. 

Sec.  16.  After  final  hearing  by  said  board,  it  shall  make  and  file  (1) 
its  findings  upon  all  facts  involved  in  the  controversy,  and  (2)  its  award, 
which  shall  state  its  determination  as  to  the  rights  of  the  party. 

Sec.  17.  Either  party  may  present  a  certified  copy  of  the  award  to 
the  superior  court  for  any  county  or  city  and  county,  whereupon  said 
court  shall,  without  notice,  render  a  judgment  in  accordance  therewith, 
which  judgment,  until  and  unless  set  aside  as  hereinafter  provided,  shall 
have  the  same  effect  as  though  duly  rendered  in  an  action  duly  tried  and 
determined  by  said  court,  and  shall,  with  the  like  effect,  be  entered  and 
docketed. 

Sec.  18.  The  findings  of  fact  made  by  the  board  acting  within  its 
powers,  shall,  in  the  absence  of  fraud,  be  conclusive,  and  the  award, 
whether  judgment  has  been  rendered  thereon  or  not,  shall  be  subject  to 
review  only  in  the  manner  and  upon  the  grounds  following:  within  thirty 
days  from  the  date  of  the  award,  any  party  aggrieved  thereby  may  file 
with  the  board  an  application  in  writing  for  a  review  of  such  award,  stat- 
ing generally  the  grounds  upon  which  such  review  is  sought;  within 
thirty  days  thereafter  the  board  shall  cause  all  documents  and  papers 
on  file  in  the  matter,  and  a  transcript  of  all  testimony  which  may  have 
been  taken  therein,  to  be  transmitted  with  their  findings  and  award  to 
the  clerk  of  the  superior  court  of  that  county  or  city  and  county  wherein 
the  accident  occurred;  such  apphcation  for  a  review  may  thereupon  be 
brought  on  for  hearing  before  said  court  upon  such  record  by  either  party 
on  ten  days'  notice  to  the  other,  subject,  however,  to  the  provisions  of 
law  for  a  change  of  the  place  of  trial  or  the  calling  of  another  judge.  Upon 
such  hearing  the  court  may  confirm  or  set  aside  such  award,  and  any 
judgment  which  may  theretofore  have  been  rendered  thereon,  but  the 
same  shall  be  set  aside  only  upon  the  following  grounds : 

(1)  That  the  board  acted  without  or  in  excess  of  its  powers. 

(2)  That  the  award  was  procured  by  fraud. 

(3)  That  the  findings  of  fact  by  the  board  do  not  support  the  award. 

Sec.  19.  Upon  the  setting  aside  of  any  award  the  court  may  recom- 
mit the  controversy  and  remand  the  record  in  the  case  to  the  board,  for 
further  hearing  or  proceedings,  or  it  may  enter  the  proper  judgment 
upon  the  findings,  as  the  nature  of  the  case  shall  demand.  An  abstract 
of  the  judgment  entered  by  the  trial  court  upon  the  review  of  any  award 
shall  be  made  by  the  clerk  thereof  upon  the  docket  entry  of  any  judg- 
ment which  may  theretofore  have  been  rendered  upon  such  award,  and 
transcripts  of  such  abstract  may  thereupon  be  obtained  for  like  entry 
upon  the  dockets  of  the  courts  of  other  counties,  or  city  and  county. 


181 

Sec.  20.  Any  party  aggrieved  by  a  judgment  entered  upon  the  review 
of  any  award,  may  appeal  therefrom  within  the  time  and  in  the  manner 
provided  for  an  appeal  from  the  orders  of  the  superior  court;  but  all  such 
appeals  shall  be  placed  on  the  calendar  of  the  supreme  court  and  brought 
to  a  hearing  in  the  same  manner  as  criminal  causes  on  such  calendar. 

Sec.  21.  No  fees  shall  be  charged  by  the  clerk  of  any  court  for  the 
performance  of  any  official  service  required  by  this  act,  except  for  the 
docketing  of  judgments  and  for  certified  copies  or  transcripts  thereof. 
In  proceedings  to  review  an  award,  costs  as  between  the  parties  shall  be 
allowed  or  not  in  the  discretion  of  the  court. 

Sec.  22.  No  claim  for  compensation  under  this  act  shall  be  assign- 
able before  payment,  but  this  provision  shall  not  affect  the  survival 
thereof;  nor  shall  any  claim  for  compensation,  or  compensation  awarded, 
adjudged  or  paid,  be  subject  to  be  taken  for  the  debts  of  the  party  en- 
titled thereto. 

Sec.  23.  A  claim  for  compensation  for  the  injury  or  death  of  any 
employee,  or  any  award  or  judgment  entered  thereon,  shall  be  entitled 
to  a  preference  over  the  other  debts  of  the  employer  if  and  to  the  same 
extent  as  the  wages  of  such  employee  shall  be  so  preferred;  but  this 
section  shall  not  impair  the  lien  of  any  judgment  entered  upon  any  award. 

Sec.  24.  Nothing  in  this  act  shall  affect  the  organization  of  any 
mutual  or  other  insurance  company,  or  any  existing  contract  for  insur- 
ance or  employers'  liabiUty,  nor  the  right  of  the  employer  to  insure  in 
mutual  or  other  companies,  in  whole  or  in  part,  against  such  liability, 
or  against  the  liability  for  the  compensation  provided  for  by  this  act, 
or  to  provide  by  mutual  or  other  insurance,  or  by  arrangement  with  his 
employees,  or  otherwise,  for  the  payment  to  such  employees,  their  fam- 
ilies, dependents,  or  representatives,  of  sick,  accident  or  death  benefits, 
in  addition  to  the  compensation  provided  for  by  this  act.  But  liability 
for  compensation  under  this  act  shall  not  be  reduced  or  affected  by  any 
insurance,  contributions,  or  other  benefit  whatsoever  due  to  or  received 
by  the  person  entitled  to  such  compensation,  and  the  person  so  entitled 
shall,  irrespective  of  any  insurance  or  other  contract,  have  the  right  to 
recover  the  same  directly  from  the  employer,  and  in  addition  thereto, 
the  right  to  enforce  in  his  own  name,  in  the  manner  provided  in  this  act, 
the  liability  of  any  insurance  company,  which  may,  in  whole  or  in  part, 
have  insured  the  liability  for  such  compensation;  provided,  however,  that 
payment  in  whole  or  in  part  of  such  compensation  by  either  the  employer 
or  the  insurance  company,  shall,  to  the  extent  thereof,  be  a  bar  to  re- 
covery against  the  other  of  the  amount  so  paid;  and  provided,  further, 
that  as  between  the  employer  and  the  insurance  company,  payment  by 
either  directly  to  the  employee,  or  to  the  person  entitled  to  compensa- 
tion, shall  be  subject  to  the  conditions  of  the  insurance  contract  between 
them. 

Sec.  25.  Every  contract  for  the  insurance  of  the  compensation  herein 
provided  for,  or  against  hability  therefor,  shall  be  deemed  to  be  made 
subject  to  the  provisions  of  this  act,  and  provisions  thereof  inconsistent 


182 

with  this  act  shall  be  void.  No  company  shall  enter  into  any  such  con- 
tract of  insurance  unless  such  company  shall  have  been  approved  by  the 
commissioner  of  insurance,  as  provided  by  law. 

Sec.  26.  The  making  of  a  lawful  claim  against  an  employer  for  com- 
pensation under  this  act  for  the  injury  or  death  of  his  employee  shall 
operate  as  an  assignment  of  any  assignable  cause  of  action  in  tort  which 
the  employee  or  his  personal  representative  may  have  against  any  other 
party  for  such  injury  or  death,  and  such  employer  may  enforce  in  his 
own  name  the  liability  of  such  other  party. 

Sec.  27.  The  board  shall  cause  to  be  printed  and  furnished  free  of 
charge  to  any  employer  or  employee  such  blank  forms  as  it  shall  deem 
requisite  to  faciUtate  or  promote  the  efficient  administration  of  this  act; 
it  shall  provide  a  proper  record  book  in  which  shall  be  entered  and  in- 
dexed the  name  of  every  employer  who  shall  file  a  statement  of  election 
under  this  act,  and  the  date  of  the  filing  thereof,  and  a  separate  book  in 
which  shall  be  entered  and  indexed  the  name  of  every  employer  who 
shall  file  his  withdrawal  of  such  election,  and  the  date  of  the  fiUng  thereof; 
and  a  book  in  which  shall  be  recorded  all  awards  made  by  the  board;  and 
such  other  books  or  records  as  it  shall  deem  required  by  the  proper  and 
efficient  administration  of  this  act;  all  such  records  to  be  kept  in  the  office 
of  the  board.  Upon  the  filing  of  a  statement  of  election  by  an  employer 
to  become  subject  to  the  provisions  of  this  act,  the  board  shall  forthwith 
cause  notice  of  the  fact  to  be  given  to  his  employees,  by  posting  and 
keeping  continuously  posted  in  a  pubhc  and  conspicuous  place  such 
notice  thereof  in  the  office,  shop,  or  place  of  business  of  the  employer, 
or  by  pubhshing,  or  in  such  other  maimer  as  the  board  shall  deem  most 
effective,  and  the  board  shall  cause  notice  to  be  given  in  like  manner  of 
the  filing  of  any  withdrawal  of  such  election;  but  notwithstanding  the 
failiure  to  give,  or  the  insufficiency  of,  any  such  notice,  knowledge  of  all 
filed  statements  of  election  and  withdi'awals  of  election,  and  of  the  time 
of  the  filing  of  the  same,  shall  conclusively  be  imputed  to  all  employees. 

Sec.  28.  Nothing  in  this  act  contained  shall  be  construed  as  impair- 
ing the  right  of  parties  interested,  after  the  injury  or  death  of  an  em- 
ployee, to  compromise  and  settle,  upon  such  terms  as  they  may  agree 
upon,  any  liability  which  may  be  claimed  to  exist  under  this  act  on  ac- 
count of  such  injury  or  death,  nor  as  conferring  upon  the  dependents  of 
any  injured  employee  any  interest  which  he  may  not  divert  by  such  set- 
tlement or  for  which  he  or  his  estate  shall,  in  the  event  of  such  settlement 
by  him,  be  accountable  to  such  dependents  or  any  of  them. 

Sec.  29.  The  sum  of  fifty  thousand  dollars  is  hereby  appropriated 
out  of  any  moneys  in  the  state  treasury,  not  otherwise  appropriated,  to 
be  used  by  the  industrial  accident  board  in  carrying  out  the  purposes  of 
this  act,  and  the  controller  is  hereby  directed  to  draw  his  warrant  on  the 
general  fund  from  time  to  time  in  favor  of  said  industrial  accident  board 
for  the  amounts  expended  under  its  direction,  and  the  treasurer  is  hereby 
authorized  and  directed  to  pay  the  same. 


183 

Sec.  30.  All  acts  or  parts  of  acts  inconsistent  with  this  act  are  hereby 
repealed. 

Sec.  31.  This  act  shall  take  effect  and  be  in  force  on  and  after  the 
first  day  of  September,  A.  D.  1911.  Approved  April  8,  1911. 

ExTBA  Session  of  1911,  Chapter  39. 

An  Act  imposing  Additional  Duties  and  conferring  Additional 
Powers  upon  the  Industrial  Accident  Board,  requiring  Cer- 
tain Statistical  Information,  fixing  a  Penalty  for  Neglect  or 
Refusal  to  give  Such  Information  to  Said  Board  on  Request, 

'  REQUIRING  Said  Board  to  report  to  the  Governor  and  author- 
izing IT  TO  GIVE  Publicity  to  the  Results  of  its  Researches  and 
Investigations  and  empowering  Said  Board  to  expend  in  Carry- 
ing Out  the  Requirements  of  this  Act  a  Sum  not  to  exceed  Fif- 
teen Thousand  Dollars  out  of  the  Funds  heretofore  appro- 
priated FOR  Carrying  Out  the  PuRPt)SES  of  An  Act  entitled 
"An  Act  relating  to  the  Liability  of  Employers  for  Injuries 
or  Death  sustained  by  their  Employees,  providing  for  Compen- 
sation FOR  THE  Accidental  Injury  of  Employees,  establishing 
AN  Industrial  Accident  Board,  making  an  Appropriation  there- 
for, defining  its  Powers  and  providing  for  a  Review  of  its 
Awards,  approved  April  8,  1911." 

The  people  of  the  State  of  California  do  enact  as  follows: 

Section  1.  It  shall  be  the  duty  of  the  industrial  accident  board  to 
collect  and  compile  statistics  in  regard  to  industrial  accidents  happening 
in  this  state  resulting  in  personal  injury  and  the  cost  and  probable  causes 
thereof,  to  investigate  methods  and  devices  for  the  prevention  of  such 
accidents,  to  investigate  the  comparative  merits  and  relative  cost  of  the 
various  forms  of  insurance  against  liability  and  compensation  for  per- 
sonal injuries  resulting  from  industrial  accidents. 

Sec.  2.  It  shall  be  the  duty  of  every  employer  of  labor  and  of  per- 
sons, firms,  associations  or  corporations  insuring  against  liability  of  em- 
ployers for  damages  or  compensation  for  personal  injuries  to  employees 
by  industrial  accidents  to  furnish  to  the  industrial  accident  board,  upon 
the  written  request  of  a  member  thereof  or  an  examiner  appointed  thereby, 
any  and  all  information  in  his  or  its  possession  or  under  his  or  its  control, 
pertinent  to  any  of  the  matters  referred  to  in  the  preceding  section  of 
this  act.  It  shall  be  unlawful  for  the  said  board,  or  any  member  thereof, 
or  any  examiner  appointed  thereby,  to  divulge  any  information  obtained 
from  any  employer  of  labor,  or  from  any  person,  firm,  association  or 
corporation  insuring  against  liability  or  compensation  for  industrial  acci- 
dents, without  the  written  consent  of  such  employer,  and  of  such  person, 
firm,  association  or  corporation;  and  any  member  of  the  said  board,  or 
any  examiner  appointed  thereby  who  violates  the  provisions  of  this  sec- 
tion of  this  act,  shall  be  guilty  of  a  misdemeanor,  and  for  each  and  every 


184 

such  violation  shall  be,  upon  conviction  thereof,  punishable  by  a  fine  of 
not  less  than  ten  dollars  ($10)  or  more  than  one  hundred  dollars  ($100) 
or  by  imprisonment  for  not  more  than  thirty  (30)  days,  or  by  both  such 
fine  and  imprisonment;  and  any  information  so  obtained  shall  not  be 
used  against  any  such  employer,  person,  firm,  association  or  corporation, 
in  any  action  brought  against  such  employer,  person,  firm,  association 
or  corporation  without  the  written  consent  of  such  employer,  person, 
firm,  association  or  corporation;  provided,  however,  that  this  section  shall 
not  prevent  the  industrial  accident  board  from  making  and  publishing 
the  results  of  its  investigations  and  researches  as  provided  in  sections 
5  and  6  of  this  act. 

Sec.  3.  Any  member  of  the  said  board  or  examiner  appointed  thereby 
may,  during  reasonable  business  hours,  enter  any  place  of  employment 
for  the  purpose  of  collecting  facts  and  statistics  and  examining  the  pro- 
visions made  for  the  safety  and  welfare  of  the  employees  therein. 

Sec.  4.  It  shall  be  unlawful  for  any  person,  firm,  corporation,  agent 
or  officer  of  a  firm  or  corporation  to  fail,  neglect  or  refuse  to  comply  with 
any  of  the  foregoing  provisions  of  this  act.  Any  person,  firm,  corpora- 
tion, agent  or  officer  of  a  firm  or  corporation  that  knowingly  violates  or 
omits  to  comply  with  any  of  the  provisions  of  this  act,  shall  be  guilty  of 
a  misdemeanor  for  each  and  every  offense  and  shall  be,  upon  convic- 
tion thereof,  punishable  by  a  fine  of  not  more  than  ten  dollars. 

Sec.  5.  The  industrial  accident  board  shall  report  the  results  of  its 
investigations  covering  the  calendar  year  of  1912  to  the  governor  of  the 
state  not  later  than  February  1,  1913. 

Sec.  6.  The  industrial  accident  board  is  authorized  and  empowered 
to  make  public  and  publish  at  such  times  and  in  such  manner  as  it  deems 
best,  the  results  of  its  investigations  and  researches  together  with  all 
such  other  information  in  relation  to  the  liability  of  employers  for  dam- 
ages or  compensation  for  personal  injuries  to  their  employees  as  it  may 
deem  essential  to  fully  acquaint  the  people  of  the  state  with  the  present 
law  and  its  purpose  and  operation. 

Sec.  7.  The  industrial  accident  board  is  hereby  authorized  to  draw 
upon  and  expend  for  the  purposes  set  forth  in  this  act  a  sum  not  in  excess 
of  fifteen  thousand  dollars  the  same  to  be  paid  out  of  the  sum  of  fifty 
thousand  dollars  appropriated  for  the  use  of  said  board  under  section  29 
of  an  act  entitled  "An  act  relating  to  the  liability  of  employers  for  in- 
juries or  death  sustained  by  their  employees,  establishing  an  industrial 
accident  board,  making  appropriation  therefor,  defining  its  powers  and 
providing  for  a  review  of  its  awards,  approved  April  8,  1911,"  and  the 
controller  is  hereby  directed  to  draw  his  warrants  in  favor  of  said  board 
for  sums  so  expended  when  duly  audited  and  approved  by  the  state  board 
of  control,  and  the  treasurer  is  hereby  authorized  and  directed  to  pay  the 
same.  Approved  Janiuiry  2,  1912. 


185 


Extra  Sejbsion  of  1911,  Chapter  53. 

An  Act  to  provide  for  the  Keeping  by  Employers  of  a  Record  of 
Injuries  suffered  by  their  Employees;  the  Reporting  of  Such 
Injuries  to  the  Industrial  Accident  Board  by  Employers  and 

#  Attending  Physicians;  the  Keeping  by  Employers  and  Insur- 
ance Companies  of  Records  of  Claims  for  Injuries  suffered  by 
Employees  and  of  Compromises  and  Settlements  made  therefor 

AND  requiring  THE  REPORTING  THEREOF  TO  SaID  BoARD;  AND  FIX- 
ING A  Penalty  for  Refusal  or  Neglect  to  keep  Such  Records 
or  make  Such  Reports. 

The  people  of  the  State  of  California  do  enact  as  follows: 

Section  1.  Every  employer  of  labor  in  this  state  shall  keep  a  full, 
true  and  correct  record  of  every  personal  injury  suffered  by  his  or  its 
employees,  arising  out  of  or  in  the  course  of  the  employment,  and  result- 
ing in  death,  or  in  disability  extending  over  a  period  of  a  week  or  more. 
Within  fifteen  days  after  the  happening  of  any  such  personal  injury,  a 
written  report  thereof  shall  be  mailed  by  the  employer  to  the  industrial 
accident  board  informally,  or  on  blanks  to  be  provided  by  said  board  for 
this  purpose.  The  said  report  shall  contain  the  name  of  the  employer, 
location  of  place  of  employment,  nature  of  employment,  name,  address, 
age,  nationality,  sex  and  occupation  of  the  injured  person,  length  of 
time  the  injured  person  had  worked  at  the  particular  employment  pre- 
vious to  injury,  date  and  hour  of  the  day  or  night  of  the  accident,  the 
hour  at  which  the  injured  employee  began  work  on  the  date  of  the  acci- 
dent, nature  of  the  injury,  cause  of  the  injury  and  rate  of  wages  of  the 
injured  employee. 

Sec.  2.  Upon  the  termination  of  the  disability  of  the  injured  employee 
or  at  the  expiration  of  sixty  days  from  the  date  of  the  accident,  if  the 
disability  should  extend  beyond  such  period,  the  employer  shall  mail  to 
the  industrial  accident  board  a  supplemental  report  in  relation  to  such 
disability,  informally  or  on  blanks  to  be  provided  by  said  board  for  this 
purpose.  Such  report  must  contain  complete  statements  as  to  any  claim 
made  by  the  injured  employee  for  indemnification  for  the  injury  sustained, 
payment  made  to  him  or  in  his  behalf  for  medical,  surgical  or  other  care, 
claim  for  compensation  or  damages  made  for  such  injuries  and  any  com- 
promise or  settlement  of  claim  for  compensation  or  damages  entered  into 
between  the  employer  and  such  injured  employee,  his  heirs,  dependents 
or  legal  representative.  In  the  event  that  any  payment  shall  be  made 
to  such  injured  employee,  or  his  dependents  at  any  time  thereafter,  in 
compromise  or  settlement  of  a  claim  for  compensation  or  damages,  the 
amount  of  such  payment  shall  be  forthwith  reported  by  the  employer  to 
the  industrial  accident  board. 

Sec.  3.  Every  physician  who  attends  any  such  injured  employee 
shall  keep  a  record  of  his  case.    Within  ten  days  from  the  date  of  his 


186 

first  attendance  upon  the  injured  employee,  he  shall  mail  to  the  indus- 
trial accident  board  a  report,  informally  or  on  blanks  to  be  provided  by 
the  said  board  for  this  purpose.  The  said  report  shall  contain  the  name 
and  address  of  the  employer,  name,  address,  sex  and  age  of  the  injured 
employee,  date  of  accident,  description  of  the  injury,  probable  nature 
and  extent  of  disability.  Upon  the  termination  of  the  disability  of  th^ 
injured  employee  or  the  termination  of  said  physician's  attendance  upon 
his  case,  he  shall  forthwith  mail  to  the  industrial  accident  board  a  sup- 
plemental report  in  relation  to  such  case  describing  the  physical  condi- 
tion of  the  injured  employee,  his  disability,  convalescence  or  discharge 
from  the  doctor's  care. 

Sec.  4.  Every  person,  firm,  association  or  corporation  insuring  against 
the  liability  of  employers  for  damages  or  compensation  for  personal  in- 
jury to  employees  or  indemnifying  any  employer  for,  or  on  account  of 
any  such  liability  shall  keep  a  record  thereof,  and  shall  within  the  first 
five  days  of  each  and  every  month,  report  in  writing  to  the  industrial 
accident  board,  informally  or  on  blanks  to  be  provided  by  said  board  for 
this  purpose,  every  such  injury  to  employees  reported  to  it,  every  claim 
for  damages  or  compensation  for  such  injury  filed  with  such  person,  firm, 
association  or  corporation  and  any  settlement  or  compromise  of  any 
such  claim  for  damages  or  compensation  whether  made  with  such  in- 
jured employee,  his  heirs,  dependents  or  legal  representative. 

Sec.  5.  Every  employer,  physician  or  insurance  company,  firm  or 
association,  shall  furnish  to  the  industrial  accident  board  all  further 
information  required  by  it  in  order  to  constitute  a  substantially  com- 
plete and  accurate  history  of  each  injury  and  the  damages  or  compensa- 
tion paid  therefor. 

Sec.  6.  The  record  required  to  be  kept  in  pursuance  of  the  provisions 
of  this  act  shall  at  all  times  be  open  to  inspection  of  the  industrial  acci- 
dent board  or  any  member  thereof,  or  any  examiner  appointed  thereby. 
Any  statement  contained  in  such  report  shall  not  be  admissible  as  evi- 
dence in  any  action  arising  out  of  the  death  or  injury  of  any  employee 
by  reason  of  the  accident  reported. 

Sec.  7.  It  shall  be  unlawful  for  any  person,  firm,  corporation,  agent 
or  oflBcer  of  a  firm  or  corporation  to  fail,  neglect  or  refuse  to  comply  with 
any  of  the  provisions  of  this  act.  Any  person,  firm,  corporation,  agent 
or  officer  of  a  firm  oi:  corporation  that  violates  or  omits  to  comply  with 
any  of  the  provisions  of  this  act,  shall  be  guilty  of  a  misdemeanor  for 
each  and  every  offense  and  shall  be,  upon  conviction  thereof,  punishable 
by  fine  of  not  less  than  ten  dollars  or  more  than  one  hundred  dollars  or 
by  imprisonment  for  not  more  than  thirty  days,  or  by  both  such  fine  and 
imprisonment. 

Sec.  8.  Nothing  in  this  act  shall  apply  to  employers  of  labor  engaged 
in  farming,  dairying,  agricultural  or  horticultural  pursuits,  in  poultry 
raising  or  domestic  service.  Approved  January  10,  1912. 


187 


.      ILLINOIS. 

Laws  of  1911,  p.  314. 

An  Act  to  promote  the  General  Welfare  of  the  People  of  this 
State,  by  providing  Compensation  for  Accidental  Injuries  or 
Death  suffered  in  the  Course  of  Employment. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois,  repre- 
sented in  the  General  Assembly:  That  any  employer  covered  by  the  pro- 
visions of  this  Act  in  this  State  may  elect  to  provide  and  pay  compensa- 
tion for  injuries  sustained  by  any  employe  arising  out  of  and  in  the  course 
of  the  employment  according  to  the  provisions  of  this  Act,  and  thereby 
relieve  himself  from  any  liability  for  the  recovery  of  damages,  except  as 
herein  provided.  If,  however,  any  such  employer  shall  elect  not  to  pro- 
vide and  pay  the  compensation  to  any  employ^  who  has  elected  to  accept 
the  provisions  of  this  Act,  according  to  the  provisions  of  this  Act  he 
shall  not  escape  UabiUty  for  injuries  sustained  by  such  employ 6  arising 
out  of  and  in  the  course  of  his  employment  because 

1.  The  employ^  assumed  the  risks  of  the  employer's  business. 

2.  The  injury  or  death  was  caused  in  whole  or  in  part  by  the  negli- 
gence of  a  fellow  servant. 

3.  The  injury  or  death  was  proximately  caused  by  the  contributory 
negligence  of  the  employ^,  but  such  contributory  negligence  shall  be  con- 
sidered by  the  jury  in  reducing  the  amount  of  damages. 

a.  Every  such  employer  is  presumed  to  have  elected  to  provide  and 
pay  the  compensation  according  to  the  provisions  of  this  Act,  unless  and 
until  notice  in  writing  of  his  election  to  the  contrary  is  filed  with  the  State 
Bureau  of  Labor 'Statistics. 

b.  Every  employer  within  the  provisions  of  this  Act  failing  to  file  such 
notice  shall  be  bound  hereby  as  to  all  his  employes  who  shall  elect  to 
come  within  the  provisions  of  this  Act  until  January  1st  of  the  next  suc- 
ceeding year  and  for  terms  of  each  year  thereafter:  Provided,  any  such 
employer  may  elect  to  discontinue  the  payments  of  compensation  herein 
provided  only  at  the  expiration  of  any  such  calendar  year,  by  fiUng  notice 
of  his  intention  to  discontinue  such  payments,  with  the  State  Bureau  of 
Labor  Statistics,  at  least  sixty  days  prior  to  the  expiration  of  any  such 
calendar  year,  and  by  posting  such  notice  in  the  plant,  shop,  office  or 
place  of  work,  or  by  personal  service,  in  written  or  printed  form,  upon 
such  employ^,  at  least  sixty  days  prior  to  the  expiration  of  any  such  calen- 
dar year. 

c.  In  the  event  any  employer  elects  to  provide  and  pay  compensation 
provided  in  this  Act,  then  every  employ^  of  such  employer,  as  a  part  of 
his  contract  of  hiring  or  who  may  be  employed  at  the  time  of  the  taking 
effect  of  this  Act  and  the  acceptance  of  its  provisions  by  the  employer, 
shall  be  deemed  to  have   accepted  all  the  provisions  of  this  Act  and 


188 

shall  be  bound  thereby  unless  within  thirty  days  after  such  hiring  and 
after  the  taking  effect  of  this  Act,  he  shall  file  a  notice  to  the  contrary 
with  the  secretary  of  the  State  Bureau  of  Labor  Statistics,  whose  duty 
it  shall  be  to  immediately  notify  the  employer,  and  if  so  notified,  the 
employer  shall  not  be  deprived  of  any  of  his  common  law  or  statutory 
defenses,  and  until  such  notice  to  the  contrary  is  given  to  the  employer, 
the  measure  of  liability  of  the  employer  for  any  injury  shall  be  deter- 
mined abcording  to  the  compensation  provisions  of  this  Act:  Provided, 
however,  that  before  any  such  employ^  shall  be  bound  by  the  provisions 
of  this  Act,  his  employer  shall  either  furnish  to  such  employ^  personally 
at  the  time  of  his  hiring,  or  post  in  a  conspicuous  place  at  the  plant  or 
in  the  room  or  place  where  such  employ^  is  to  be  employed,  a  legible 
statement  of  the  compensation  provisions  of  this  Act. 

§  2.  The  provisions  of  this  Act  shall  apply  to  every  employer  in  the 
State  engaged  in  the  building,  maintaining  or  demolishing  of  any  struc- 
ture; in  any  construction  or  electrical  work;  in  the  business  of  carriage 
by  land  or  water  and  loading  and  unloading  in  connection  therewith 
(except  as  to  carriers  who  shall  be  construed  to  be  excluded  herefrom  by 
the  laws  of  the  United  States  relating  to  liabiUty  to  their  employes  for 
personal  injuries  while  engaged  in  interstate  commerce  where  such  laws 
are  held  to  be  exclusive  of  all  State  regulations  providing  compensation 
for  accidental  injuries  or  death  suffered  in  the  course  of  employment); 
in  operating  general  or  terminal  store-houses;  in  mining,  surface  mining, 
or  quarrying;  in  any  enterpriVe,  or  branch  thereof,  in  which  explosive 
materials  are  manufactured,  handled  or  used  in  dangerous  quantities; 
in  any  enterprise  wherein  molten  metal  or  injurious  gases  or  vapors  or 
inflammable  fluids  are  manufactured,  used,  generated,  stored  or  conveyed 
in  dangerous  quantities;  and  in  any  enterprise  in  which  statutory  regu- 
lations are  now  or  shall  hereafter  be  imposed  for  the  guarding,  using  or 
the  placing  of  machinery  or  appUances,  or  for  the  protection  and  safe- 
guarding of  the  employes  therein,  each  of  which  employments  is  hereby 
determined  to  be  especially  dangerous,  in  which  from  the  nature,  condi- 
tions and  means  of  prosecution  of  the  work  therein,  extraordinary  risks 
to  life  and  limb  of  the  employ^  engaged  therein  are  inherent,  necessary 
or  substantially  unavoidable,  and  as  to  each  of  which  employments  it  is 
deemed  necessary  to  establish  a  new  system  of  compensation  for  acci- 
dents to  the  employes  therein. 

§  3.  No  common  law  or  statutory  right  to  recover  damages  for  injury 
or  death  sustained  by  any  employ^  while  engaged  in  the  line  of  his  duty 
as  such  employ^  other  than  the  compensation  herein  provided  shall  be 
available  to  any  employ^  who  has  accepted  the  provisions  of  this  Act  or 
to  any  one  wholly  or  partially  dependent  upon  him  or  legally  responsible 
for  his  estate:  Provided,  that  when  the  injury  to  the  employ 6  was  caused 
by  the  intentional  omission  of  the  employer,  to  comply  with  statutory 
safety  regulations,  nothing  in  this  Act  shall  affect  the  civil  Uability  of 
the  employer.     If  the  employer  is  a  partnership,  such  omission  must  be 


189 

that  of  one  of  the  partners  thereof,  and  if  a  corporation,  that  of  any  elec- 
tive officer  thereof. 

§  4.  The  amount  of  compensation  which  the  employer  who  accepts 
the  provisions  of  this  Act  shall  pay  for  injury  to  the  employ^  which  re- 
sults in  death,  shall  be: 

a.  If  the  employ^  leaves  any  widow,  child  or  children,  or  parents  or 
other  Uneal  heirs  to  whose  support  he  had  contributed  within  five  years 
previous  to  the  time  of  his  death,  a  sum  equal  to  four  times  the  average 
annual  earnings  of  the  employ^,  but  not  less  in  any  event  than  one  thou- 
sand five  hundred  dollars,  and  not  more  in  any  event  than  three  thou- 
sand five  hundred  dollars.  Any  weekly  payments,  other  than  necessary 
medical  or  surgical  fees,  shall  be  deducted  in  ascertaining  such  amount 
payable  on  death. 

b.  If  the  employ^  leaves  collateral  heirs  dependent  upon  his  earnings, 
such  a  percentage  of  the  sum  provided  in  section  "a"  as  the  contribu- 
tions which  deceased  made  to  the  support  of  these  dependents,  bore  to 
his  earnings. 

c.  If  the  employ^  leaves  no  widow  or  child  or  children,  parents  or 
hneal  or  collateral  heirs  dependent  upon  his  earnings,  a  sum  not  to  exceed 
one  hundred  and  fifty  dollars  for  burial  expenses. 

d.  All  compensation  provided  for  in  this  section  to  be  paid  in  case 
injury  results  in  death,  shall  be  paid  in  installments  equal  to  one-half 
the  average  earnings,  at  the  same  intervals  at  which  the  wages  or  earn- 
ings of  the  employ^  were  paid  while  he  was  living;  or  if  this  shall  not  be 
feasible,  then  the  installments  shall  be  paid  weekly, 

e.  The  compensation  to  be  paid  for  injuries  which  result  in  death,  as 
provided  for  in  this  section,  shall  be  paid  to  the  personal  representative 
of  the  deceased  employ^  and  shall  be  distributed  by  such  personal  rep- 
resentative to  the  beneficiaries  entitled  thereto,  in  accordance  with  the 
laws  of  this  State  relating  to  the  descent  and  distribution  of  personal 
property. 

§  5.  The  amount  of  compensation  which  the  employer  who  accepts 
the  provisions  of  this  Act  shall  provide  and  pay  for  injury  to  the  employ^ 
resulting  in  disability  shall  be: 

a.  Necessary  first  aid,  medical,  surgical  and  hospital  services,  also 
medicine  and  hospital  services  for  a  period  not  longer  than  eight  weeks, 
not  to  exceed,  however,  the  amount  of  S200.00,  also  necessary  services 
of  a  physician  or  surgeon  during  such  period  of  disabihty,  unless  such 
employ^  elects  to  secure  his  own  physician  or  surgeon. 

h.  If  the  period  of  disabihty  lasts  for  more  than  six  working  days,  and 
such  fact  is  determined  by  the  physician  or  physicians,  as  provided  in 
section  9,  compensation  equal  to  one-half  of  the  earnings,  but  not  less 
than  $5.00  nor  more  than  $12.00  per  week,  beginning  on  the  eighth  day 
of  disabihty,  and  as  long  as  the  disabihty  lasts,  or  until  the  amount  of 
compensation  paid  equals  the  amount  payable  as  a  death  benefit. 

c.  If  any  employ^,  by  reason  of  any  accident  arising  out  of  and  in  the 


190 

course  of  his  employment,  receive  any  serious  and  permanent  disfigure- 
ment to  the  hands  or  face,  but  which  injury  does  not  actually  incapaci- 
tate the  employ^  from  pursuing  his  usual  or  customary  employment  so 
that  it  is  possible  to  measure  compensation  in  accordance  with  the  scale 
of  compensation  and  the  methods  of  computing  the  same  herein  pro- 
vided, such  employ^  shall  have  the  right  to  resort  to  the  arbitration 
provisions  of  this  Act  for  the  purpose  of  determining  a  reasonable  amount 
of  compensation  to  be  paid  to  such  employe,  but  not  to  exceed  one-quar- 
ter (j)  the  amount  of  his  compensation  in  case  of  death. 

d.  If  after  the  injury  has  been  received  it  shall  appear  upon  medical 
examination  as  provided  for  in  section  9,  that  the  employ 4  has  been  par- 
tially, though  permanently  incapacitated  from  pursuing  his  usual  and 
customary  line  of  employment,  he  shaU  receive  compensation  equal  to 
one-half  of  the  difference  between  the  average  amount  which  he  earned 
before  the  accident,  and  the  average  amount  which  he  is  earning,  or  is 
able  to  earn  in  some  suitable  employment  or  business  after  the  accident,- 
if  such  employment  is  secured. 

e.  In  the  case  of  complete  disability  which  renders  the  employ^  wholly 
and  permanently  incapable  of  work,  compensation  for  the  first  eight  years 
after  the  day  the  injury  was  received,  equal  to  50  per  cent  of  his  earnings, 
but  not  less  than  $5.00  nor  more  than  $12.00  per  week.  If  complete 
disability  continues  after  the  payment  of  a  sum  equal  to  the  amount  of 
the  death  benefit  or  after  the  expiration  of  the  eight  years,  then  a  com- 
pensation during  life,  equal  to  8  per  cent  of  the  death  benefit  which  would 
have  been  payable  had  the  accident  resulted  in  death.  Such  compensa- 
tion shall  not  be  less  than  $10.00  per  month  and  shall  be  payable  monthly. 

(1)  In  case  death  occurs  before  the  total  of  the  payments  made  equals 
the  amount  payable  as  a  death  benefit,  as  provided  in  section  4,  article  a, 
then  in  case  the  employ^  leaves  any  widow,  child  or  children,  or  parents, 
or  other  Hneal  heirs,  they  shall  be  paid  the  difference  between  the  com- 
pensation for  death  and  the  sum  of  such  payment,  but  in  no  case  shall 
this  sum  be  less  than  $500.00. 

(2)  In  cases  of  complete  disability,  after  compensation  has  been  paid 
at  the  specified  rate  for  a  term  of  at  least  six  months,  the  employ^  shall 
have  the  privilege  of  filing  a  petition  in  accordance  with  article  d  of  sec- 
tion 4  of  this  Act,  asking  for  a  Imnp  sum  payment  of  the  difference  be- 
tween the  sum  of  the  payments  received  and  the  compensation  to  which 
he  was  entitled  when  such  permanent  disability  has  been  definitely  deter- 
mined. For  the  purpose  of  tliis  section,  blindness  or  the  total  irrecover- 
able loss  of  sight,  the  loss  of  both  feet  at  or  above  the  ankle,  the  loss  of 
both  hands  at  or  above  the  wrist,  the  loss  of  one  hand  and  one  foot,  an 
injury  to  the  spine  resulting  in  permanent  paralysis  of  the  legs  or  arms, 
and  a  fracture  of  the  skull  resulting  in  incurable  imbecility  or  insanity, 
shall  be  considered  complete  and  permanent  disability:  Provided,  these 
specific  cases  of  complete  disability  shall  not,  however,  be  construed  as 
excluding  other  cases. 


191 

(3)  In  fixing  the  amount  of  the  disability  payments,  regard  shall  be 
had  to  any  payments,  allowance  or  benefit  which  the  employ^  may  have 
received  from  the  employer  during  the  period  of  his  incapacity,  except 
the  expenses  of  necessary  medical  or  surgical  treatment.  In  no  event, 
except  in  cases  of  complete  disability  as  defined  above,  shall  any  weekly 
payment  payable  under  the  compensation  plan  in  this  section  provided 
exceed  $12.00  per  week,  or  extend  over  a  period  of  more  than  eight  years 
from  the  date  of  the  accident.  In  case  an  injured  employ^  shall  be  in- 
competent at  the  time  when  any  right  or  privilege  accrues  to  him  under 
the  provisions  of  this  Act,  a  conservator  or  guardian  of  the  incompetent, 
appointed  pursuant  to  law,  may  on  behalf  of  such  incompetent,  claim 
and  exercise  any  such  right  or  privilege  with  the  same  force  and  effect 
as  if  the  employ^  himself  had  been  competent  and  had  claimed  or  exer- 
cised said  right  or  privilege;  and  no  limitations  of  time  by  this  Act  pro- 
vided, shall  run  so  long  as  said  incompetent  employ^  had  no  conservator 
or  guardian. 

§  5|.  Any  person  entitled  to  coTppensation  under  this  Act,  or  any 
employer  who  shall  be  bound  to  pay  compensation  under  this  Act,  who 
shall  desire  to  have  such  compensation,  or  any  part  thereof,  paid  in  a 
lump  sum,  may  petition  any  court  of  competent  jurisdiction  of  the  county 
in  which  the  employ^  resided  or  worked  at  the  time  of  disability  or  death, 
asking  that  such  compensation  be  so  paid,  and  if  upon  proper  notice  to 
the  interested  parties,  and  a  proper  showing  made  before  such  court,  it 
appears  to  the  best  interest  of  the  parties  that  such  compensation  be  so 
paid,  the  court  shall  order  payment  of  a  lump  sum,  and  where  necessary, 
upon  proper  appUcation  being  made,  a  guardian,  conservator  or  admin- 
istrator, as  the  case  may  be,  shall  be  appointed  for  any  person  under 
disability  who  may  be  entitled  to  any  such  compensation,  and  an  em- 
ployer bound  by  the  terms  of  this  Act,  and  liable  to  pay  such  compensa- 
tion, may  petition  for  such  appointment  where  no  such  legal  representa- 
tives have  been  appointed  or  acting  for  such  party  or  parties  so  under 
disability. 

§  6.  The  basis  for  computing  the  compensation  provided  for  in  sec- 
tions 4  and  5  of  the  Act  shall  be  as  follows: 

a.  The  compensation  shall  be  computed  on  the  basis  of  the  annual 
earnings  which  the  injured  person  received  as  salary,  wages  or  earnings 
in  the  employment  of  the  same  employer  during  the  year  next  preceding 
the  injury. 

6.  Employment  by  the  same  employer  shall  be  taken  to  mean  em- 
ployment by  the  same  employer  in  the  grade  in  which  the  employ^  was 
employed  at  the  time  of  the  accident,  uninterrupted  by  absence  from 
work  due  to  illness  or  any  other  unavoidable  cause. 

c.  The  annual  earnings  if  not  otherwise  determinable  shall  be  regarded 
as  300  times  the  average  daily  earnings  in  such  computation. 

d.  If  the  injured  person  has  not  been  engaged  in  the  employment  for 
a  full  year  immediately  preceding  the  accident,  the  compensation  shall 


192 

be  computed  according  to  the  annual  earnings  which  persons  of  the  same 
class  in  the  same  or  in  neighboring  employments  of  the  same  kind  have 
earned  during  such  period.  And  if  this  basis  of  computation  is  impos- 
sible, or  should  appear  to  be  unreasonable,  three  hundred  times  the  amount 
which  the  injured  person  earned  on  an  average  on  those  days  when  he 
was  working  during  the  year  next  preceding  the  accident,  shall  be  used 
as  a  basis  for  the  computation. 

e.  In  the  case  of  injured  employes  who  earn  either  no  wage  or  less  than 
three  hundred  times  the  usual  daily  wage  or  earnings  of  the  adult  day 
laborers  in  the  same  Une  of  industry  of  that  locality,  the  yearly  wage 
shall  be  reckoned  as  three  hundred  times  the  average  daily  local  wage. 

/.  As  to  employes  in  employments  in  which  it  is  the  custom  to  operate 
for  a  part  of  the  whole  number  of  working  days  in  each  year,  such  num- 
ber shall  be  used  instead  of  three  hundred  as  a  basis  for  computing  the 
annual  earnings,  provided  the  minimum  number  of  days  which  shall  be 
used  for  the  basis  of  the  year's  work  shall  be  not  less  than  two  hundred. 

g.  Earnings,  for  the  purpose  of  this  section,  shall  be  based  on  the  earn- 
ings for  the  number  of  hours  commonly  regarded  as  a  day's  work  for 
that  emplo3Tiient,  and  shall  exclude  overtime  earnings.  The  earnings 
shall  not  include  any  sum  which  the  employer  has  been  accustomed  to 
pay  the  employ^  to  cover  any  special  expense  entailed  on  him  by  the 
nature  of  his  employment. 

h.  In  computing  the  compensation  to  be  paid  to  any  employ^  who, 
before  the  accident  for  which  he  claims  compensation,  was  disabled  and 
drawing  compensation  under  the  terms  of  this  Act,  the  compensation  for 
each  subsequent  injury  Shall  be  apportioned  according  to  the  proportion 
of  incapacity  and  disabihty  caused  by  the  respective  injuries  which  he 
may  have  suffered. 

§  7.  The  compensation  herein  provided  shall  be  the  measure  of  the 
responsibiUty  which  the  employer  has  assumed  for  injuries  or  death  that 
may  occur  to  employes  in  his  employment  subject  to  the  provisions  of 
this  Act,  and  it  shall  not  be  in  any  way  reduced  by  contributions  from 
employes. 

§  8.  If  it  is  proved  that  the  injury  to  the  employ^  resulted  from  his 
dehberate  intention  to  cause  such  injury,  no  compensation  with  respect 
to  that  injury  shall  be  allowed. 

§  9.  Any  employ^  entitled  to  receive  disability  payments  shall  be 
required  if  requested  by  the  employer  to  submit  himself  for  examination 
at  the  expense  of  the  employer  to  a  duly  qualified  medical  practitioner 
or  surgeon  selected  by  the  employer,  at  a  time  and  place  reasonably  con- 
venient for  the  employ^,  as  soon  as  practicable  after  the  injury,  and  also 
one  week  after  the  first  examination,  and  thereafter  at  intervals  not 
oftener  than  once  every  four  weeks,  which  examinations  shall  be  for  the 
purpose  of  determining  the  nature,  extent  and  probable  duration  of  the 
injury  received  by  the  employ^,  and  for  the  purpose  of  adjusting  the 
compensation  which  may  be  due  the  employ^  from  time  to  time  for  dis- 


193 

ability  according  to  the  provisions  of  sections  4  and  5  of  this  Act:  Pro- 
vided, however,  that  such  examination  shall  be  made  in  the  presence  of  a 
duly  qualified  medical  practitioner  or  surgeon  provided  and  paid  for  by 
the  employ^,  if  such  employ^  so  desires,  and  in  the  event  of  a  disagree- 
ment between  said  medical  practitioners  or  surgeons  as  to  the  nature, 
extent  or  probable  duration  of  said  injury  or  disability,  they  may  agree 
upon  a  third  medical  practitioner  or  surgeon,  and,  failing  to  agree  upon 
such  third  medical  practitioner  or  surgeon,  the  judge  of  the  county  court 
of  the  county  where  the  employe  resided  or  was  employed  at  the  time  of 
the  injury,  shall  within  six  days  after  petition  filed  in  such  court  for  that 
purpose,  select  a  third  medical  practitioner  or  surgeon  and  the  majority 
report  of  such  three  physicians  as  to  the  nature,  extent  and  probable 
duration  of  such  injury  or  disability  shall  be  used  for  the  purpose  of  esti- 
mating the  amount  of  compensation  pay/xble  under  this  Act.  If  the  em- 
ploy6  refuses  so  to  submit  himseK  to  examination  or  unnecessarily  ob- 
structs the  same,  his  right  to  compensation  payments  shall  be  temporarily 
suspended  until  such  examination  shall  have  taken  place,  and  no  compen- 
sation shall  be  payable  under  this  Act  during  such  period. 

§  10.  Any  question  of  law  or  fact  arising  in  regard  to  the  application 
of  this  law  in  determining  the  compensation  payable  hereunder  shall  be 
determined  either  by  agreement  of  the  parties  or  by  arbitration  as  herein 
provided.  In  case  any  such  question  arises  which  cannot  be  settled  by 
agreement,  the  employ^  and  the  employer  shall  each  select  a  disinter- 
ested party  and  the  judge  of  the  county  court,  or  other  court  of  compe- 
tent jurisdiction,  of  the  county  where  the  injured  employ^  resided  or 
worked  at  the  time  of  the  injury,  shall  appoint  a  third  disinterested  party, 
such  persons  to  constitute  a  board  of  arbitrators  for  the  purpose  of  hear- 
ing and  determining  all  such  disputed  questions  of  law  or  fact  arising  in 
regard  to  the  application  of  this  law  in  determining  the  compensation 
payable  hereunder;  and  it  shall  be  the  duty  of  both  employ^  and  em- 
ployer to  submit  to  such  board  of  arbitrators  not  later  than  ten  days 
after  the  selection  and  appointment  of  such  arbitrators  all  facts  or  evi- 
dence which  may  be  in  their  possession  or  under  their  control,  relating 
to  the  questions  to  be  determined  by  said  arbitrators;  and  said  board  of 
arbitrators  shall  hear  all  the  evidence  submitted  by  both  parties  and 
they  shall  have  access  to  any  books,  papers  or  records  of  either  the  em- 
ployer or  the  employe  showing  any  facts  which  may  be  material  to  the 
questions  before  them,  and  they  shall  be  empowered  to  visit  the  place 
or  plant  where  the  accident  occurred,  to  direct  the  injured  employ^  to  be 
examined  by  a  regular  practicing  physician  or  surgeon,  and  to  do  aU 
other  acts  reasonably  necessary  for  a  proper  investigation  of  all  matters 
in  dispute.  A  copy  of  the  report  of  the  arbitrators  in  each  case  shall  be 
prepared  and  filed  by  them  with  the  State  Bureau  of  Labor  Statistics, 
and  shall  be  binding  upon  both  the  employer  and  employ^  except  for 
fraud  and  mistake:  Provided,  that  either  party  to  such  arbitration  shall 
have  the  right  to  appeal  from  such  report  or  award  of  the  arbitrators  to 


194 

the  circuit  court  or  the  court  that  appointed  the  third  arbitrator  of  the 
county  where  the  injury  occurred  by  fiUng  a  petition  in  such  court  within 
twenty  days  after  the  fihng  of  the  report  of  the  arbitrators,  and  upon 
filing  a  good  and  sufficient  bond,  in  the  discretion  of  the  court,  and  upon 
such  appeal  the  questions  in  dispute  shall  be  heard  de  novo,  and  either 
party  may  have  a  jury  upon  fiUng  a  ^Titten  demand  therefor  with  his 
petition. 

§  11.  Any  person  entitled  to  payment  under  the  compensation  pro- 
visions of  this  Act  from  any  employer  shall  have  the  same  preferential 
claim  therefor  against  the  property  of  the  employer  as  is  now  allowed  by 
law  for  a  claim  by  such  person  against  such  employer  for  unpaid  wages 
or  for  personal  services,  such  preference  to  prevail  against  wage  claims 
of  all  other  employes,  not  entitled  to  compensation  for  injuries,  and  the 
pajonents  due  under  such  compensation  provisions  shall  not  be  subject 
to  attachment,  levy,  execution,  garnishment  or  satisfaction  of  debts, 
except  to  the  same  extent  and  in  the  same  manner  as  wages  or  earnings 
for  personal  service  are  now  subject  to  attachment,  levy,  execution,  gar- 
nishment or  satisfaction  of  debts,  under  the  laws  of  this  State,  and  shall 
not  be  assignable.  Any  right  to  receive  compensation  hereunder  shall 
be  extinguished  by  the  death  of  the  person  or  persons  entitled  thereto, 
subject  to  the  provisions  of  this  Act  relative  to  compensation  for  death 
received  in  the  course  of  employment.-  No  claun  of  any  attorney  at  law 
for  services  in  securing  a  recovery  under  this  Act  shall  be  an  enforceable 
lien  thereon  unless  the  amount  of  the  same  be  approved  in  writing  by  a 
judge  of  a  court  of  record,  which  approval  may  be  made  in  cerm  time 
or  vacation. 

§  12.  Any  contract  or  agreement  made  by  any  employer  or  his  agent 
or  attorney  with  any  employ^  or  any  other  beneficiary  of  any  claim  under 
the  provisions  of  this  Act  within  seven  days  after  the  injury  shall  be  pre- 
sumed to  be  fraudulent. 

§  13.  No  employ 6  or  beneficiary  shall  have  power  to  waive  any  of 
the  provisions  of  this  Act  in  regard  to  the  amount  of  compensation  which 
may  be  payable  to  such  employ^  or  beneficiary  hereunder. 

§  14.  No  proceedings  for  compensation  under  this  Act  shall  be  main- 
tained unless  notice  of  the  accident  has  been  given  to  the  employer  as 
soon  as  practicable  after  the  happening  thereof,  and  during  such  dis- 
ability, and  unless  claim  for  compensation  has  been  made  within  six 
months  after  the  injury,  except  that  in  case  of  an  accident  resulting  in 
temporary  disability,  notice  of  such  accident  must  be  given  to  the  em- 
ployer within  thirty  days  after  said  accident;  or  in  case  of  the  death  of 
the  employ^  or  in  the  event  of  his  incapacity,  within  six  months  after 
such  death  or  incapacity,  or  in  the  event  that  payments  have  been  made 
under  the  provisions  of  this  Act,  within  six  months  after  such  payments 
have  ceased.  No  want  or  defect  or  inaccuracy  of  such  notice  shall  be  a 
bar  to  the  maintenance  of  proceedings  by  arbitration  or  otherwise  by  the 
employ^,  unless  the  employer  proves  that  he  is  unduly  prejudiced  in 


195 

such  proceedings  by  such  want,  defect  or  inaccuracy.  Notice  of  the 
accident  shall,  in  substance  apprise  the  employer  of  the  claim  of  com- 
pensation made  and  shall  state  the  name  and  address  of  the  employ^ 
injured,  the  approximate  date  and  place  of  the  accident,  if  known,  and 
in  simple  language  the  cause  thereof;  which  notice  may  be  served  per- 
sonally or  by  registered  mail,  addressed  to  the  employer  at  his  last  known 
residence  or  place  of  business:  Provided,  that  the  failure  on  the  part  of 
any  person  entitled  to  such  compensation  to  give  such  notice  shall  not 
relieve  the  employer  from  his  liability  for  such  compensation,  when  the 
facts  and  circumstances  of  such  accident  are  known  to  such  employer  or 
his  agent,  supervising  work  in  which  such  employ^  was  engaged  at  the 
time  of  the  injury. 

§  15.  This  Act  shall  not  affect  or  disturb  the  continuance  of  any 
existing  insurance,  mutual  aid,  benefit,  or  relief  association  or  depart- 
ment, whether  maintained  in  whole  or  in  part  by  the  employer  or  whether 
maintained  by  the  employes,  the  payment  of  benefits  of  such  associa- 
tion or  department  being  guaranteed  by  the  employer  or  by  some  person, 
firm  or  corporation  for  him:  Provided,  the  employer  contributes  to  such 
association  or  department  an  amount  sufficient  to  insure  the  employes 
or  other  beneficiary  the  fuU  compensation  herein  provided,  exclusive  of 
the  cost  of  the  maintenance  of  such  association  or  department  without 
any  expense  to  the  employ^.  This  Act  shall  not  prevent  the  organiza- 
tion and  maintaining  under  the  insurance  law  of  this  State  of  any  benefit 
or  insurance  company  for  the  purpose  of  insuring  against  the  compensa- 
tion provided  for  in  this  Act,  the  expense  of  which  is  maintained  by  the 
employer.  This  Act  shall  not  prevent  the  organization  or  maintaining 
under  the  insurance  laws  of  this  State  of  any  voluntary  mutual  aid,  bene- 
fit or  relief  association  among  employes  for  the  payment  of  additional 
accident  or  sick  benefits. 

No  existing  insurance,  mutual  aid,  benefit  or  relief  association  or  de- 
partment shall,  by  reason  of  anything  herein  contained,  be  authorized  to 
discontinue  its  operation  without  first  discharging  its  obligations  to  any 
and  all  persons  carrying  insurance  in  the  same  or  entitled  to  rehef  or 
benefits  therein. 

Any  contract  of  employment,  relief  benefit,  or  insurance  or  other  device 
whereby  the  employ^  is  required  to  pay  any  premium  or  premiums  for 
insurance  against  the  compensation  provided  for  in  this  Act  shall  be 
null  and  void,  and  any  employer  withholding  from  the  wages  of  any 
employ^  any  amount  for  the  purpose  of  paying  any  such  premium  shall 
be  guilty  of  a  misdemeanor  and  punishable  by  a  fine  of  not  less  than  ten 
dollars  nor  more  than  twenty-five  dollars  in  each  offense  in  the  discre- 
tion of  the  court. 

§  16.  Any  person  who  shall  become  entitled  to  compensation  under 
the  provisions  of  this  Act,  shall,  in  the  event  of  his  inability  to  recover 
such  compensation  from  the  employer  on  account  of  his  insolvency,  be 
subrogated  to  all  the  rights  of  such  employer  against  any  insurance  com- 


196 

pany  or  association  which  may  have  insured  such  employer  against  loss 
growing  out  of  the  compensation  required  by  the  provisions  of  this  Act 
to  be  paid  by  such  employer,  and  in  such  case  only,  a  payment  of  the 
compensation  that  has  accrued  to  the  person  entitled  thereto  in  accord- 
ance with  the  provisions  of  this  Act,  shall  reUeve  such  insurance  company 
from  such  liability. 

§  17.  Where  the  injury  for  which  compensation  is  payable  under  this 
Act  was  caused  under  circumstances  creating  a  legal  liability  in  some 
person,  other  than  the  employer,  to  pay  damages  in  respect  thereof: 

a.  The  employ^  or  beneficiary  may  take  proceedings  both  against  that 
person  to  recover  damages  and  against  the  employer  for  compensation, 
but  the  amount  of  the  compensation  which  he  is  entitled  to  under  this 
Act  shall  be  reduced  by  the  amount  of  damages  recovered. 

b.  If  the  employ^  or  beneficiary  has  recovered  compensation  under  this 
Act,  the  employer  by  whom  the  compensation  was  paid  or  the  person 
who  has  been  called  upon  to  pay  the  indemnity  under  sections  4  and  5 
of  this  Act,  may  be  entitled  to  indemnity  from  the  person  so  liable  to 
pay  damages  as  aforesaid,  and  shall  be  subrogated  to  the  rights  of  the 
employ^  to  recover  damages  therefor. 

§  18.  An  agreement  or  award  may,  at  any  time  after  six  months,  and 
before  eighteen  months,  from  the  date  of  filing,  be  reviewed,  upon  the 
application  of  either  party,  on  the  ground  that  the  incapacity  of  the 
employ^  has  subsequently  increased  or  diminished.  Such  application 
shall  be  made  to  any  court  of  competent  jurisdiction;  and  unless  the 
parties  consent  to  arbitration,  the  court  may  appoint  a  medical  practi- 
tioner to  examine  the  employ 6  and  report  upon  his  condition;  and  upon 
his  report,  and  after  hearing  all  the  evidence  the  court  may  modify  such 
agreement  or  award,  as  may  be  just,  by  ending,  increasing  or  diminish- 
ing the  compensation,  subject  to  the  limitations  hereinbefore  provided. 

§  19,  It  shall  be  the  duty  of  every  employer  within  the  provisions  of 
this  Act  to  send  to  the  secretary  of  the  State  Bureau  of  Labor  Statistics 
in  writing  an  immediate  report  of  all  accidents  or  injuries  arising  out  of 
or  in  the  course  of  the  employment  and  resulting  in  death;  it  shall  also 
be  the  duty  of  every  such  employer  to  report  between  the  15th  and  the 
25th  of  each  month  to  the  secretary  of  the  State  Bureau  of  Labor  Sta- 
tistics all  accidents  or  injuries  for  which  compensation  has  been  paid 
under  this  Act,  which  accidents  or  injuries  entail  a  loss  to  the  employ^ 
of  more  than  one  week's  time,  and  in  case  the  injury  results  in  permanent 
disability,  such  report  shall  be  made  as  soon  as  it  is  determined  that  such 
permanent  disability  has  resulted  or  will  result  from  such  injury.  All 
such  reports  shall  state  the  date  of  the  injury,  including  the  time  of  day 
or  night,  the  nature  of  the  employer's  business,  the  age,  sex,  conjugal 
condition  of  the  injured  person,  the  specific  occupation  of  the  injured 
person,  the  direct  cause  of  the  injury  and  the  nature  of  the  accident,  the 
nature  of  the  injury,  the  length  of  disability  and,  in  case  of  death,  the 
length  of  disability  before  death,  the  wages  of  the  injured  person,  whether 


197 

compensation  has  been  paid  to  the  injured  person,  or  to  his  legal  repre- 
sentative or  his  heirs  or  next  of  kin,  the  amount  of  compensation  paid, 
the  amount  paid  for  physicians',  surgeons'  and  hospital  bills,  and  by 
whom  paid,  and  the  amount  paid  for  funeral  or  burial  expenses,  if  Icnown. 
The  making  of  reports  as  provided  herein  shall  release  the  employer 
covered  by  the  provisions  of  this  Act  from  making  such  reports  to  any 
other  officer  of  the  State. 

§  20.  Any  person,  firm  or  corporation  who  undertakes  to  do  or  con- 
tracts with  others  to  do,  or  have  done  for  him,  them  or  it,  any  work 
embraced  in  section  2  of  this  Act,  requiring  such  dangerous  employment 
of  employes  in,  or  about  premises  where  he,  they  or  it,  as  principal  or 
principals,  contract  to  do  such  work  or  any  part  thereof,  and  does  not 
require  that  the  compensation  provided  for  in  this  Act  shall  be  insured 
to  the  employ^  or  beneficiary  by  any  such  person,  firm  or  corporation 
undertaking  to  do  such  work  and  any  such  person,  firm  or  corporation 
who  creates  or  carries  into  operation  any  fraudulent  scheme,  artifice  or 
device  to  enable  him,  them  or  it  to  execute  such  work  without  such  per- 
son, firm  or  corporation  being  responsible  to  the  employ^  or  beneficiaries 
entitled  to  such  compensation  under  the  provisions  of  this  Act,  such 
person,  firm  or  corporation  shall  be  included  in  the  term  "employer" 
and  with  the  immediate  employer  shall  be  jointly  and  severally  liable  to 
pay  the  compensation  herein  provided  for,  and  be  subject  to  all  the  pro- 
visions of  this  Act. 

§  21.  The  term  ''employ^"  as  used  in  this  Act  shall  be  held  to  include 
only  such  persons  as  may  be  exposed  to  the  necessary  hazards  of  carry- 
ing on  any  employment  or  enterprise  referred  to  in  section  2  of  this  Act. 
Persons  whose  employment  is  of  a  casual  nature  and  who  are  employed 
otherwise  than  for  the  purpose  of  the  employers'  trade  or  business,  are 
not  included  in  the  foregoing  definition. 

§  22.  Section  21  shall  not  be  construed  to  include  any  employ 6 
engaged  in  any  work  of  an  incidental  character  unconnected  with  the 
dangers  necessarily  involved  in  carrying  on  any  employment  or  enter- 
prise referred  to  in  section  2,  or  in  any  work  of  a  clerical  or  adminis- 
trative nature  which  does  not  expose  the  employ^  to  the  inherent  haz- 
ards of  any  such  employment  or  enterprise. 

§  23.  Any  wilful  neglect,  refusal,  or  failure  to  do  the  things  required 
to  be  done  by  any  section,  clause,  or  provision  of  this  Act,  on  the  part 
of  the  persons  herein  required  to  do  them,  or  any  violation  of  any  of  the 
provisions  or  requirements  hereof,  or  any  attempt  to  obstruct  or  inter- 
fere with  any  court  officer,  member  of  an  arbitration  board  herein  pro- 
vided for,  or  with  the  secretary  of  the  Bureau  of  Labor  Statistics  or  his 
deputy,  in  the  discharge  of  the  duties  herein  imposed  upon  any  of  them, 
or  any  refusal  to  comply  with  the  terms  of  this  Act,  shall  be  deemed  a 
misdemeanor,  punishable  by  a  fine  of  not  less  than  $10.00  nor  more  than 
),  at  the  discretion  of  the  court. 

§  23^.     The  right  of  action  for  damages  caused  by  any  such  injury, 


198 

at  common  law  or  other  statute  in  force  prior  to  the  taking  effect  hereof 
shall  not  be  aflfected  by  this  Act  and  every  existing  right  of  action  for 
negligence  or  to  recover  damages  for  injury  resulting  in  death,  is  con- 
tinued and  nothing  in  this  Act  shall  be  construed  as  limiting  the  right 
of  such  action  so  accrued  before  the  taking  effect  of  this  Act. 

§  24.  The  invalidity  of  any  portion  of  this  Act  shall  in  no  way  affect 
the  validity  of  any  other  portion  thereof  which  can  be  given  effect  with- 
out such  invalid  part. 

§  25.  This  Act  shall  take  effect  and  be  in  force  on  and  after  the  1st 
day  of  May,  1912.  Approved  June  10,  1911. 


KANSAS. 

Laws  of  1911,  Chapter  218. 

An  Act  to  provide  Compensation  for  Workmen  injured  in  Certain 
Hazardous  Industries. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Kansas: 

Section  1.  The  obligation.  If  in  any  employment  to  which  this  act 
applies,  personal  injury  by  accident  arising  out  of  and  in  the  course  of 
employment  is  caused  to  a  workman,  his  employer  shall,  subject  as  here- 
inafter mentioned,  be  liable  to  pay  compensation  to  the  workman  in 
accordance  with  this  act.  Save  as  herein  provided,  no  such  employer 
shall  be  liable  for  any  injury  for  which  compensation  is  recoverable  under 
this  act;  provided,  that  (o)  the  employer  shall  not  be  liable  under  this 
act  in  respect  of  any  injury  which  does  not  disable  the  workman  for  a 
period  of  at  least  two  weeks  from  earning  full  wages  at  the  work  at  which 
he  is  employed;  (6)  if  it  is  proved  that  the  injury  to  the  workman  results 
from  his  deliberate  intention  to  cause  such  injury,  or  from  his  willful 
failure  to  use  a  guard  or  protection  against  accident  required  pursuant 
to  any  statute  and  provided  for  him,  or  a  reasonable  and  proper  guard 
and  protection  voluntarily  furnished  him  by  said  employer,  or  solely 
from  his  dehberate  breach  of  statutory  regulations  affecting  safety  of 
life  or  limb,  or  from  his  intoxication,  any  compensation  in  respect  to  that 
injury  shall  be  disallowed. 

Sec.  2.  Reservation  of  liability  for  wrong  or  negligence  in  certain  cases. 
Where  the  injury  was  proximately  caused  by  the  individual  negligence, 
either  of  commission  or  omission,  of  the  employer,  including  such  negli- 
gence of  the  directors  or  of  any  managing  officer  or  managing  agent  of 
such  employer  if  a  corporation,  or  of  any  of  the  partners  if  such  employer 
is  a  partnership,  or  of  any  member  if  such  employer  is  an  association, 
but  excluding  the  negligence  of  competent  employees  in  the  performance 
of  their  duties  or  of  the  employer's  duty  delegated  to  them,  the  existing 
liability  of  the  employer  shall  not  be  affected  by  this  act,  but  in  such 
case  the  injured  workman,  or  if  death  results  from  such  injury,  his  depend- 
ents as  herein  defined,  if  they  unanimously  agree,  otherwise  his  legal  rep- 


199 

resentative,  may  elect  between  any  right  of  action  against  the  employer 
upon  such  liabihty  and  the  right  to  compensation  under  this  act. 

Sec.  3.  Reservation  of  penalties.  Nothing  in  this  act  shall  affect  the 
liability  of  the  employer  or  employee  to  a  fine  or  penalty  under  any  other 
statute. 

Sec.  4.  Subcontracting,  (a)  Where  any  person  (in  this  section  re- 
ferred to  as  principal)  undertakes  to  execute  any  work  which  is  a  part  of 
his  trade  or  business  or  which  he  has  contracted  to  perform  and  contracts 
with  any  other  person  (in  this  section  referred  to  as  the  contractor)  for 
the  execution  by  or  under  the  contractor  of  the  whole  or  any  part  of  the 
work  undertaken  by  the  principal,  the  principal  shall  be  liable  to  pay  to 
any  workman  employed  in  the  execution  of  the  work  any  compensation 
under  this  act  which  he  would  have  been  liable  to  pay  if  that  workman 
had  been  immediately  employed  by  him;  and  where  compensation  is 
claimed  from  or  proceedings  are  taken  against  the  principal,  then,  in  the 
appUcation  of  this  act,  references  to  the  principal  shall  be  substituted  for 
references  to  the  employer,  except  that  the  amount  of  compensation  shall 
be  calculated  with  reference  to  the  earnings  of  the  workman  under  the 
employer  by  whom  he  is  immediately  employed.  (6)  Where  the  princi- 
pal is  liable  to  pay  compensation  under  this  section,  he  shall  be  entitled 
to  indemnity  from  any  person  who  would  have  been  liable  to  pay  com- 
pensation to  the  workman  independently  of  this  section,  and  shall  have 
a  cause  of  action  therefor,  (c)  Nothing  in  this  section  shall  be  construed 
as  preventing  a  workman  from  recovering  compensation  under  this  act 
from  the  contractor  instead  of  the  principal,  {d)  This  section  shall  not 
apply  to  any  case  where  the  accident  occurred  elsewhere  than  on  or  in, 
or  about  the  premises  on  which  the  principal  has  undertaken  to  execute 
work  or  which  are  otherwise  under  his  control  or  management,  or  on,  in, 
or  about  the  execution  of  such  work  under  his  control  or  management, 
(e)  A  principal  contractor,  when  sued  by  a  workman  of  a  subcontractor, 
shall  have  the  right  to  implead  the  subcontractor.  (/)  The  principal 
contractor  who  pays  compensation  voluntarily  to  a  workman  of  a  sub- 
contractor shall  have  the  right  to  recover  over  against  the  subcontractor. 

Sec.  5.  Remedies  both  against  employer  and  stranger.  Where  the 
injury  for  which  compensation  is  payable  under  this  act  was  caused  under 
circumstances  creating  a  legal  liabiUty  against  some  person  other  than 
the  employer  to  pay  damages  in  respect  thereof,  (a)  The  workman  may 
take  proceedings  against  that  person  to  recover  damages  and  against 
any  person  liable  to  pay  compensation  imder  this  act  for  such  compen- 
sation, but  shall  not  be  entitled  to  recover  both  damages  and  compensa- 
tion; and  (6)  If  the  workman  has  recovered  compensation  under  this 
act,  the  person  by  whom  the  compensation  was  paid,  or  any  person  who 
has  been  called  on  to  indemnify  him  under  the  section  of  this  act  relating 
to  subcontracting,  shall  be  entitled  to  indemnity  from  the  person  so  liable 
to  pay  damages  as  aforesaid,  and  shall  be  subrogated  to  the  rights  of  the 
worlonan  to  recover  damages  therefor. 


200 

Sec.  6.  Application  of  the  act.  Tliis  act  shall  apply  only  to  employ- 
ment in  the  course  of  the  employer's  trade  or  business  on,  in,  or  about  a 
railway,  factory,  mine  or  quarry,  electric,  building  or  engineering  work, 
laundry,  natural  gas  plant  and  all  employments  wherein  a  process  requir- 
ing the  use  of  any  dangerous  explosive  or  inflammable  materials  is  carried 
on,  which  is  conducted  for  the  purpose  of  business,  trade  or  gain;  each 
of  which  emplojTnents  is  hereby  determined  to  be  especially  dangerous, 
in  which  from  the  nature,  conditions  or  means  of  prosecution  of  the  work 
therein,  extraordinary  risk  to  the  life  and  limb  of  the  workman  engaged 
therein  are  inherent,  necessary,  or  substantially  unavoidable,  and  as  to 
each  of  which  employments  it  is  deemed  necessary  to  estabhsh  a  new 
system  of  compensation  for  injuries  to  workmen.  This  act  shall  not  apply 
in  any  case  where  the  accident  occurred  before  this  act  takes  effect,  and 
all  rights  which  have  accrued,  by  reason  of  any  such  accident,  at  the 
time  of  the  publication  of  this  act,  shall  be  saved  the  remedies  now  exist- 
ing therefor,  and  the  court  shall  have  the  same  power  as  to  them  as  if 
this  act  had  not  been  enacted. 

Sec.  7.  This  act  shall  not  be  construed  to  apply  to  business  or  em- 
ployments which,  according  to  law,  are  so  engaged  in  interstate  commerce 
as  to  be  not  subject  to  the  legislative  power  of  the  state,  nor  to  persons 
injured  while  they  are  so  engaged. 

Sec.  8.  It  is  hereby  determined  that  the  necessity  for  this  law  and 
the  reason  for  its  enactment,  exist  only  with  regard  to  employers  who 
employ  a  considerable  number  of  persons.  This  act,  therefore,  shall  only 
apply  to  employers  by  whom  fifteen  or  more  workmen  have  been  [em- 
ployed] continuously  for  more  than  one  month  at  the  time  of  the  acci- 
dent and  who  have  elected  or  shall  elect  before  the  accident  to  come 
within  the  provision  hereof;  provided,  however,  that  employers  having 
less  than  fifteen  workmen  may  elect  to  come  within  the  provisions  of 
this  act  in  which  case  his  employees  shall  be  included  herein,  as  hereinafter 
provided. 

Sec.  9.  Definitions.  In  this  act,  unless  the  context  otherwise  requires, 
(a)  "Railway"  includes  street  railways  and  interurbans;  and  "employ- 
ment on  railways"  includes  work  in  depots,  power  houses,  round-houses, 
machine  shops,  yards,  and  upon  the  right  of  way,  and  in  the  operation 
of  its  engines,  cars  and  trains,  and  to  employees  of  express  companies 
while  running  on  railroad  trains.  (6)  "Factory"  means  any  premises 
wherein  power  is  used  in  manufacturing,  making,  altering,  adapting,  orna- 
menting, finishing,  repairing  or  renovating  any  article  or  articles  for  the 
purpose  of  trade  or  gain  or  of  the  business  carried  on  therein,  including 
expressly  any  brick  yard,  meat-packing  house,  foundry,  smelter,  oil 
refinery,  lime  burning  plant,  steam  heating  plant,  electric  lighting  plant, 
electric  power  plant  and  water  power  plant,  powder  plant,  blast  furnace, 
paper  mill,  printing  plant,  flour  mill,  glass  factory,  cement  plant,  arti- 
ficial gas  plant,  machine  or  repair  shop,  salt  plant,  and  chemical  manu- 
facturing plant,     (c)  "Mine"  means  any  opening  in  the  earth  for  the 


201 

purpose  of  extracting  any  minerals,  and  all  underground  workings,  slopes 
shafts,  galleries  and  tunnels,  and  other  ways,  cuts  and  openings  connected 
therewith,  including  those  in  the  course  of  being  opened,  sunk  or  driven; 
and  includes  all  the  appurtenant  structures  at  or  about  the  openings  of 
the  mine,  and  any  adjoining  adjacent  work  place  where  the  material 
from  a  mine  is  prepared  for  use  or  shipment,  (d)  "Quarry"  means  any 
place,  not  a  mine,  where  stone,  slate,  clay,  sand,  gravel  or  other  sohd 
material  is  dug  or  otherwise  extracted  from  the  earth  for  the  purpose  of 
trade  or  bargain  or  of  the  employer's  trade  or  business,  (e)  "Electrical 
work"  means  any  kind  of  work  in  or  directly  connected  with  the  construc- 
tion, installation,  operation,  alteration,  removal  or  repair  of  wires,  cables, 
switchboards  or  apparatus,  used  for  the  transmission  of  electrical  current. 
(J)  "Building  work"  means  any  work  in  the  erection,  construction,  exten- 
sion, decoration,  alteration,  repair  or  demolition  of  any  building  or  struc- 
tural appurtenance,  (g)  "Engineering  work"  means  any  work  in  the 
construction,  alteration,  extension,  repair  or  demolition  of  a  railway  (as 
hereinbefore  defined)  bridge,  jetty,  dike,  dam,  reservoir,  underground 
conduit,  sewer,  oil  or  gas  well,  oil  tank,  gas  tank,  water  tower,  or  water 
works  (including  standpipes  or  mains)  any  caisson  work  or  work  in  arti- 
ficially compressed  air,  any  work  in  dredging,  pile  driving,  moving  build- 
ings, moving  safes,  or  in  laying,  repairing  or  removing,  underground  pipes 
and  connections,  the  erection,  installing,  repairing,  or  removing  of  boilers, 
furnaces,  engines  and  power  machinery,  (including  belting  and  other  con- 
nections) and  any  work  in  grading  or  excavating  where  shoring  is  neces- 
sary or  power  macliinery  or  blasting  powder,  dynamite  or  other  high 
explosives  is  in  use  (excluding  mining  and  quarrying),  (h)  "Employer" 
includes  any  person  or  body  of  persons  corporate  or  unincorporate,  and 
the  legal  representatives  of  a  deceased  employer  or  the  receiver  or  trustee 
of  a  person,  corporation,  association  or  partnership,  (i)  "Workman" 
means  any  person  who  has  entered  into  the  employment  of  or  works  under 
contract  of  service  or  apprenticeship  with  an  employer,  but  does  not 
include  a  person  who  is  employed  otherwise  than  for  the  purpose  of  the 
employer's  trade  or  business.  Any  reference  to  a  workman  who  has  been 
injured  shall,  where  the  workman  is  dead,  include  a  reference  to  his 
dependents,  as  hereinafter  defined,  or  to  his  legal  representative,  or  where 
he  is  a  minor  or  incompetent,  to  his  guardian,  (j)  "Dependents"  means 
such  members  of  the  workman's  family  as  were  wholly  or  in  part  depend- 
ent upon  the  workman  at  the  time  of  the  accident.  And  "members  of  a 
family"  for  the  purposes  of  this  act  means  only  widow  or  husband,  as 
the  case  may  be,  and  children;  or  if  no  widow,  husband  or  children,  then 
parents  and  grandparents,  or  if  no  parents  or  grandparents,  then  grand- 
children; or  if  no  grandchildren,  then  brothers  and  sisters.  In  the  mean- 
ing of  this  section  parents  include  step-parents,  children  include  step- 
children, and  grandchildren  include  step-grandchildren,  and  brothers  and 
sisters  include  step-brothers  and  step-sisters,  and  children  and  parents 
include  that  relation  by  legal  adoption. 


202 

Sec.  10.  Incompetency  of  workman.  In  case  an  injured  workman  is 
mentally  incompetent  or  a  minor,  or  where  death  results  from  the  injury, 
in  case  any  of  his  dependents  as  herein  defined  is  mentally  incompetent 
or  a  minor,  at  the  time  when  any  right,  privilege  or  election  accrues  to 
him  under  this  act,  his  guardian  may,  in  his  behalf,  claim  and  exercise 
such  right,  privilege,  or  election,  and  no  hmitation  of  time,  in  this  act 
provided  for,  shall  run,  so  long  as  such  incompetent  or  minor  has  no 
guardian. 

Sec.  11.  Amount  of  compensation.  The  amount  of  compensation 
under  this  act  shall  be,  (a)  Where  death  results  from  injury:  (1)  If  the 
workman  leaves  any  dependents  wholly  dependent  upon  his  earnings,  an 
amount  equal  to  three  times  his  earnings  for  the  preceding  year  but  not 
exceeding  thirty-six  hundred  dollars  and  not  less  than  twelve  hundred 
dollars,  provided,  such  earnings  shall  be  computed  upon  the  basis  of  the 
scale  which  he  received  or  would  have  been  entitled  to  receive  had  he 
been  at  work,  during  the  thirty  days  next  preceding  the  accident;  and, 
if  the  period  of  the  workman's  employment  by  the  said  employer  had 
been  less  than  one  year,  then  the  amount  of  his  earnings  during  the  said 
year  shall  be  deemed  to  be  fifty-two  times  his  average  weekly  earnings 
during  the  period  of  his  actual  employment  under  said  employer;  pro- 
vided, that  the  amount  of  any  pajmaents  made  under  this  act  and  any 
lump  sum  paid  hereunder  for  such  injury  from  which  death  may  there- 
after result  shall  be  deducted  from  such  sum;  and  provided,  however, 
that  if  the  workman  does  not  leave  any  dependents,  citizens  of  and  resid- 
ing at  the  time  of  the  accident  in  the  United  States  or  the  Dominion  of 
Canada,  the  amount  of  compensation  shall  not  exceed  in  any  case  seven 
hundred  and  fifty  dollars.  (2)  If  the  workman  does  not  leave  any  such 
dependents,  but  leaves  any  dependents  in  part  dependent  upon  his  earn- 
ings, such  proportion  of  the  amount  payable  under  the  foregoing  provi- 
sions of  this  section,  as  may  be  agreed  upon  or  determined  to  be  propor- 
tionate to  the  injury  to  the  said  dependents;  and  (3)  If  he  leaves  no 
dependents,  the  reasonable  expense  of  his  medical  attendance  and  burial, 
not  exceeding  one  hundred  dollars.  (6)  Where  total  incapacity  for  work 
results  from  injury,  periodical  payments  during  such  incapacity,  com- 
mencing at  the  end  of  the  second  week,  equal  to  fifty  per  cent  of  his  aver- 
age weekly  earnings  computed  as  provided  in  section  12  but  in  no  case 
less  than  six  dollars  per  week  or  more  than  fifteen  dollars  per  week, 
(c)  When  partial  incapacity  for  work  results  from  injury,  periodical  pay- 
ments during  such  incapacity,  commencing  at  the  end  of  the  second  week, 
shall  not  be  less  than  twenty-five  per  cent,  nor  exceeding  fifty  per  cent,  based 
upon  the  average  weekly  earnings  computed  as  provided  in  section  12, 
but  in  no  case  less  than  three  dollars  per  week  or  more  than  twelve  dol- 
lars per  week;  provided,  however,  that  if  the  workman  is  under  twenty- 
one  years  of  age  at  the  date  of  the  accident  and  the  average  weekly  earn- 
ings are  less  than  ten  dollars  his  compensation  shall  not  be  less  than 
seventy-five  per  cent  of  his  average  earnings.    No  such  pajnnent  for 


203 

total  or  partial  disability  shall  extend  over  a  period  exceeding  ten 
years. 

Sec.  12.  Rule  for  compensation.  For  the  purposes  of  the  provisions 
of  this  act  relating  to  "earnings"  and  "average  earnings"  of  a  workman, 
the  following  rules  shall  be  observed:  (a)  "Average  earnings"  shall  be 
computed  in  such  manner  as  is  best  calculated  to  give  the  average  rate  per 
week  at  which  the  workman  was  being  remunerated  for  the  fifty-two  weeks 
prior  to  the  accident.  Provided,  that  where  by  reason  of  the  shortness 
of  time  during  which  the  workman  has  been  in  the  employment  of  his 
employer,  or  the  casual  nature  or  the  terms  of  the  employment,  it  is 
impracticable  to  compute  the  rate  of  remuneration,  regard  shall  be  had 
to  the  average  weekly  amount  which,  during  the  twelve  months  previous 
to  the  accident,  was  being  earned  by  a  person  in  the  same  grade  employed 
at  the  same  work  by  the  same  employer,  or,  if  there  is  no  person  employed, 
by  a  person  in  the  same  grade  employed  in  the  same  class  of  employment 
and  in  the  same  district.  (6)  Where  the  workman  had  entered  into  con- 
current contracts  of  service  with  two  or  more  employers  under  which  he 
worked  at  one  time  for  one  such  employer  and  at  another  time  for  another 
such  employer,  his  "earnings"  and  his  "average  earnings"  shall  be  com- 
puted as  if  his  earnings  under  all  such  contracts  were  earnings  in  the 
employment  of  the  employer  for  whom  he  was  working  at  the  time  of 
the  accident,  (c)  Employment  by  the  same  employer  shall  be  taken  to 
mean  employment  by  the  same  employer  in  the  grade  in  Avhich  the  work- 
man was  employed  at  the  time  of  the  accident,  uninterrupted  by  his 
absence  of  work  due  to  illness  or  any  other  unavoidable  cause,  (d)  Where 
the  employer  has  been  accustomed  to  pay  to  the  workman  a  sum  to  cover 
any  special  expenses  entailed  upon  him  by  the  nature  of  his  employment, 
the  sum  so  paid  shall  not  be  reckoned  as  part  of  the  earnings,  (e)  In 
fixing  the  amount  of  the  payment,  allowance  shall  be  made  for  any  pay- 
ment or  benefit  which  the  workman  may  receive  from  the  employer 
during  his  period  of  incapacity.  (/)  In  the  case  of  partial  incapacity 
the  payments  shall  be  computed  to  equal,  as  closely  as  possible,  fifty  per 
cent  of  the  difference  between  the  amount  of  the  "average  earnings"  of 
the  workman  before  the  accident,  to  be  computed  as  herein  provided,  and 
the  average  amount  which  he  is  most  probably  able  to  earn  in  some  suit- 
able employment  or  business  after  the  accident,  subject  however,  to  the 
limitations  hereinbefore  provided. 

Sec.  13.  Payments  to  the  injured  workman.  The  payments  shall  be 
made  at  the  same  time,  place  and  in  the  same  manner  as  the  wages  of 
the  workman  were  payable  at  the  time  of  the  accident,  but  a  judge  of 
any  district  court  having  jurisdiction  upon  the  application  of  either  party 
may  modify  such  regulation  in  a  particular  case  as  to  him  may  seem  just. 

Sec.  14.  Compensation  to  dependents,  etc.  Where  death  results  from 
the  injury  and  the  dependents  of  the  deceased  workman  as  herein  defined, 
have  agreed  to  accept  compensation,  and  the  amount  of  such  compensa- 
tion and  the  apportionment  thereof  between  them  has  been  agreed  to  or 


204 

otherwise  determined,  the  employer  may  pay  such  compensation  to  them 
accordingly  (or  to  an  administrator  if  one  be  appointed)  and  thereupon 
be  discharged  from  all  further  liability  for  the  injury.  Where  only  the 
apportionment  of  the  agreed  compensation  between  the  dependents  is  not 
agreed  to,  the  employer  may  pay  the  amount  into  any  district  court  hav- 
ing jurisdiction,  or  to  the  administrator  of  the  deceased  workman,  with 
the  same  effect.  Where  the  compensation  has  been  so  paid  into  com't  or 
to  an  administrator,  the  proper  court,  upon  the  petition  of  such  admin- 
istrator or  any  of  such  dependents,  and  upon  such  notice  and  proof  as  it 
may  order  shall  determine  the  distribution  thereof  among  such  depend- 
ents. Where  there  are  no  dependents,  medical  and  funeral  expenses  may 
be  paid  and  distributed  in  like  manner. 

Sec.  15.  The  payments  due  under  this  act,  as  well  as  any  judgment 
obtained  thereunder,  shall  not  be  assignable  or  subject  to  levy,  execution 
or  attachment,  except  for  medicine,  medical  attention  and  nursing  and 
no  claim  of  any  attorney  at  law  for  services  rendered  in  securing  such 
indemnity  or  compensation  or  judgment  shall  be  an  enforceable  lien 
thereon,  unless  the  same  has  been  approved  in  writing  by  the  judge  of 
the  court  where  said  case  was  tried;  but  if  no  trial  was  had,  then  by  any 
judge  of  the  'district  court  of  this  state  to  whom  such  matter  has  been 
regularly  submitted,  on  due  notice  to  the  party  or  parties  in  interest  of 
such  submission. 

Sec.  16.  Reports  as  to  accidents  and  compensation.  Employers  affected 
by  this  act  shall  report  annually  to  the  state  commissioner  and  factory 
inspector  such  reasonable  particulars  in  regard  thereto  as  he  may  require, 
including  particulars  as  to  all  releases  of  liability  under  this  act  and  any 
other  law.  The  penalty  for  failure  to  report  or  for  false  report  shall 
invalidate  any  such  release  of  hability. 

Sec.  17.  Medical  examination,  (a)  After  an  injury  to  the  employees, 
if  so  requested  by  his  employer,  the  employee  must  submit  himself  for 
examination  at  some  reasonable  time  to  a  reputable  physician  selected 
by  the  employer,  and  from  time  to  time  thereafter  during  the  pendency 
of  his  claim  for  compensation,  or  during  the  receipt  by  him  for  payment 
under  this  act,  but  he  shall  not  be  required  to  so  submit  himself,  more 
than  once  in  two  weeks  unless  in  accordance  with  such  orders  as  may  be 
made  by  the  proper  court  or  judge  thereof.  Either  party  may  upon 
demand  require  a  report  of  any  examination  made  by  the  physician  of 
the  other  party  upon  payment  of  a  fee  of  one  dollar  therefor.  (6)  If  the 
employees  request  he  shall  be  entitled  to  have  a  physician  of  his  own  selec- 
tion present  at  the  time  to  participate  in  such  examinations,  (c)  Unless 
there  has  been  a  reasonable  opportunity  thereafter  for  such  physician 
selected  by  the  employee  to  participate  in  the  examination  in  the  presence 
of  the  physician  selected  by  the  employer,  the  physician  selected  by  the 
employer  shall  not  be  permitted  afterwards  to  give  evidence  of  the  con- 
dition of  the  employee  in  a  dispute  as  to  the  injury.  (d)  Except  as  pro- 
vided herein  in  this  act  there  shall  be  no  other  disqualification  or  privilege 


205 

preventing  the  testimony  of  a  physician  who  actually  makes  an  examina- 
tion. 

Sec.  18.  Medical  examination  by  neutral  physician.  In  case  of  a  dis- 
pute as  to  the  injury,  the  committee,  or  arbitrator  as  hereinafter  provided, 
or  the  judge  of  the  district  court  shall  have  the  power  to  employ  a  neu- 
tral physician  of  good  standing  and  ability,  whose  duty  it  shall  be,  at 
the  expense  of  the  parties  to  make  an  examination  of  the  injured  person, 
as  the  court  may  direct,  on  the  petition  of  either  or  both  the  employer 
and  employee  or  dependents. 

Sec.  19.  Testimony  by  court  physician.  If  the  employer  or  the  em- 
ployee has  a  physician  make  such  an  examination  and  no  reasonable 
opportunity  is  given  to  the  other  party  to  have  his  physician  make  exam- 
ination, then,  in  case  of  a  dispute  as  to  the  injury,  the  physician  of  the 
party  making  such  examination  shall  not  give  evidence  before  the  court 
imless  a  neutral  physician  either  has  examined  or  then  does  examine  the 
injured  employee  and  give  testimony  regarding  the  injuries. 

Sec.  20.  Refusal  of  medical  examination.  If  the  employee  shall  refuse 
examination  by  physician  selected  by  the  employer,  with  the  presence  of 
a  physician  of  his  own  selection,  and  shall  refuse  an  examination  by  the 
physician  appointed  by  the  court,  he  shall  have  no  right  to  compensation 
during  the  period  from  refusal  until  he,  or  someone  in  his  behalf,  notifies 
the  employer  or  the  court  that  he  is  willing  to  have  such  examination. 

Sec.  21.  Certificate  of  physician.  A  physician  making  an  examina- 
tion shall  give  to  the  employer  and  to  the  workman  a  certificate  as  to 
the  condition  of  the  workman,  but  such  certificate  shall  not  be  competent 
evidence  of  that  condition  unless  supported  by  his  testimony  if  his  testi- 
mony would  have  been  admissible. 

Sec.  22.  Notice  and  claim.  Proceedings  for  the  recovery  of  compensa- 
tion under  this  act  shall  not  be  maintainable  unless  written  notice  of  the 
accident,  stating  the  time,  place,  and  particulars  thereof,  and  the  name 
and  address  of  the  person  injured,  has  been  given  within  ten  days  after 
the  accident,  and  unless  a  claim  for  compensation  has  been  made  within 
six  months  after  the  accident,  or  in  case  of  death,  within  six  months  from 
the  date  thereof.  Such  notice  shall  be  delivered  by  registered  mail,  or 
by  delivery  to  the  employer.  The  want  of,  or  any  defect  in  such  notice, 
or  in  its  service,  shall  not  be  a  bar  unless  the  employer  proves  that  he 
has,  in  fact,  been  thereby  prejudiced,  or  if  such  want  or  defect  was  occa- 
sioned by  mistake,  physical  or  mental  incapacity  or  other  reasonable 
cause,  and  the  failure  to  make  a  claim  within  the  period  above  specified 
shall  not  be  a  bar,  if  such  failure  was  occasioned  by  a  mistake,  physical 
or  mental  incapacity  or  other  reasonable  cause. 

Sec.  23.  Agreements.  Compensation  due  under  this  act  may  be  set- 
tled by  agreement.  Every  such  agreement,  other  than  a  release,  shall 
be  in  the  form  hereinafter  provided. 

Sec.  24.  Arbitrations.  If  compensation  be  not  so  settled  by  agree- 
ment:   (a)  If  any  committee  representative  of  the  employer  and  the 


206 

workman  exists,  organized  for  the  purpose  of  settling  disputes  under  this 
act,  the  matter  shall,  unless  either  party  objects  by  notice  in  writing 
delivered  or  sent  by  registered  mail  to  the  other  party  before  the  com- 
mittee meets  to  consider  the  matter,  be  settled  in  accordance  with  its 
rules  by  such  committee  or  by  an  arbitrator  selected  by  it.  (6)  If  either 
party  so  objects,  or  there  is  no  such  committee,  or  the  committee  or  the 
arbitrator  to  whom  it  refers  the  matter  fails  to  settle  it  within  sixty  days 
from  the  date  of  the  claim,  the  matter  may  be  settled  by  a  single  arbi- 
trator agreed  on  by  the  parties,  or  appointed  by  any  judge  of  a  court 
where  an  action  might  be  maintained.  The  consent  to  arbitration  shall 
be  in  writing  and  signed  by  the  parties  and  may  limit  the  fees  of  the  arbi- 
trator and  the  time  within  which  the  award  must  be  made.  And  unless 
such  consent  and  the  order  of  appointment  expressly  refers  other  ques- 
tions, only  the  question  of  the  amount  of  compensation  shall  be  deemed 
to  be  in  issue. 

Sec.  25.  The  duties  of  arbitrator.  The  arbitrator  shall  noi;  be  bound 
by  technical  rules  of  procedure  or  evidence,  but  shall  give  the  parties 
reasonable  opportunity  to  be  heard  and  act  reasonably  and  without  par- 
tiality. He  shall  make  and  file  his  award,  with  the  consent  to  arbitra- 
tion attached  in  the  office  of  the  clerk  of  the  proper  district  court  within 
the  time  limited  in  the  consent,  or  if  no  time  limit  is  fixed  therein,  within 
sixty  days  after  his  selection,  and  shall  give  notice  of  such  filing  to  the 
parties  by  mail. 

Sec.  26.  Arbitrator's  fees.  The  arbitrator's  fees  shall  be  fixed  by  the 
consent  to  arbitration  or  be  agreed  to  by  the  parties  before  the  arbitra- 
tion, and  if  not  so  fixed  or  agreed  to,  they  shall  not  exceed  ten  dollars  per 
day,  for  not  to  exceed  ten  days,  and  disbursements  for  expense.  The  arbi- 
trator shall  tax  or  apportion  the  costs  of  such  fees  in  his  discretion  and  shall 
add  the  amount  taxed  or  apportioned  against  the  employer  to  the  first 
payment  made  under  the  award,  and  he  shall  note  the  amount  of  his  fees 
on  the  award  and  shall  have  a  lien  therefor  on  the  first  payments  due 
under  the  award. 

Sec.  27.  Form  of  agreements  and  award.  Every  agreement  for  com- 
pensation and  every  award  shall  be  in  writing,  signed  and  acknowledged 
by  the  parties  or  by  the  arbitrator  or  secretary  of  the  committee  herein- 
before referred  to,  and  shall  specify  the  amount  due  and  unpaid  by  the 
employer  to  the  workman  up  to  the  date  of  the  agreement  or  award,  and 
if  any,  the  amount  of  the  payments  thereafter  to  be  paid  by  the  employer 
to  the  workman  and  the  length  of  time  such  payments  shall  continue. 

Sec.  28.  Filing  agreements,  awards,  etc.  It  shall  be  the  duty  of  the 
employer  to  file  or  cause  to  be  filed  every  release  of  liability  hereunder, 
every  agreement  for  or  award  of  compensation,  or  modifying  an  agree- 
ment for  or  award  of  compensation,  under  this  act,  if  not  filed  by  the 
committee  or  arbitrator,  to  which  he  is  a  party,  or  a  sworn  copy  thereof, 
in  the  office  of  the  district  court  in  the  county  in  which  the  accident 
occurred  within  sixty  days  after  it  is  made,  otherwise  it  shall  be  void  as 


207 

against  the  workman.  The  said  clerk  shall  accept,  receipt  for,  and  file 
any  such  release,  agreement  or  award,  without  fee,  and  record  and  index 
it  in  the  book  kept  for  that  purpose.  Nothing  herein  shall  be  construed 
to  prevent  the  workman  from  filing  such  agreement  or  award. 

Sec.  29.  Agreements  and  awards  —  when  canceled.  At  any  time  within 
one  year  after  an  agreement  or  award  has  been  so  filed,  a  judge  of  a  dis- 
trict court  having  jurisdiction  may,  upon  the  application  of  either  party, 
cancel  such  agreement  or  award,  upon  such  terms  as  may  be  just,  if  it  be 
shown  to  his  satisfaction  that  the  workman  has  returned  to  work  and  is 
earning  approximately  the  same  or  higher  wages  as  or  than  he  did  before 
the  accident,  or  that  the  agreement  or  award  has  been  obtained  by  fraud 
or  undue  influence,  or  that  the  committee  or  arbitrator  making  the  award 
acted  without  authority  or  was  guilty  of  serious  misconduct,  or  that  the 
award  is  grossly  inadequate  or  grossly  excessive,  or  if  the  employee  absents 
himself  so  that  a  reasonable  examination  of  his  condition  cannot  be  made, 
or  has  departed  beyond  the  boundaries  of  the  United  States  or  Canada. 

Sec.  30.  Staying  proceedings  upon  agreement  or  award.  At  any  time 
after  the  filing  of  an  agreement  or  award  and  before  judgment  has  been 
granted  thereon,  the  employer  may  stay  proceedings  thereon  by  filing 
in  the  office  of  the  clerk  of  the  district  court  wherein  such  agreements  or 
award  is  filed:  (a)  A  proper  certificate  of  a  qualified  insurance  company 
that  the  amount  of  the  compensation  to  the  workman  is  insured  by  it: 
(6)  A  proper  bond  undertaking  to  secure  the  payment  of  the  compensa- 
tion. Such  certificate  or  bond  shall  first  be  approved  by  a  judge  of  the 
said  district  court. 

Sec.  31.  Judgment  upon  agreement  or  award.  At  any  time  after  an 
agreement  or  award  has  been  filed,  the  workman  may  apply  to  the  said 
district  court  for  judgment  against  the  emploj^er  for  a  lump  sum  equal 
to  eighty  per  cent  of  the  amount  of  payments  due  and  unpaid  and  pro- 
spectively due  under  the  agreement  or  award;  and,  unless  the  agreement 
or  award  be  stayed,  modified  or  canceled,  or  the  liability  thereunder  be 
redeemed  or  otherwise  discharged,  the  court  shall  examine  the  workman 
under  oath,  and  if  satisfied  that  the  application  is  made  because  of  doubt 
as  to  the  security  of  his  compensation,  shall  compute  the  sum  and  direct 
judgment  accordingly,  as  if  in  an  action;  provided,  that  if  the  employer 
shall  give  a  good  and  sufficient  bond,  approved  by  the  court,  no  execution 
shall  issue  on  such  judgment  so  long  as  the  employer  continues  to  make 
payments  in  accordance  with  the  original  agreement  or  award  undimin- 
ished by  the  discount. 

Sec.  32.  Review  or  modification  of  agreement  or  award.  An  agreement 
or  award  may  be  modified  at  any  time  by  a  subsequent  agreement;  or, 
at  any  time  after  one  year  from  the  date  of  filing;  it  may  be  reviewed, 
upon  the  application  of  either  party  on  the  ground  that  the  incapacity  of 
the  workman  has  subsequently  increased  or  diminished.  Such  appUca- 
tion  shall  be  made  to  the  said  district  court;  and,  unless  the  parties  con- 
sent to  arbitration,  the  court  may  appoint  a  medical  practitioner  to  exam- 


208 

ine  the  workman  and  report  to  it;  and  upon  his  report  and  after  hearing 
the  evidence  of  the  parties,  tlie  court  may  modify  such  agreement  or 
award,  as  may  be  just,  by  ending,  increasing  or  diminishing  the  compen- 
sation, subject  to  the  Umitations  hereinbefore  provided. 

Sec.  33.  Redemption  of  liability.  Where  any  payment  has  been  con- 
tinued for  not  less  than  six  months  the  habihty  therefor  may  be  redeemed 
by  the  employer  by  the  payment  to  the  workman  of  a  lump  sum  of  an 
amount  equal  to  eighty  per  cent  of  the  pa5anents  which  may  become  due 
according  to  the  award,  such  amount  to  be  determined  by  agreement,  or, 
in  default  thereof,  upon  application,  to  a  judge  of  a  district  court  having 
jurisdiction.  Upon  paying  such  amount  the  employer  shall  be  discharged 
from  all  further  Uability  on  account  of  the  injury,  and  be  entitled  to  a 
duly  executed  release,  upon  fiUng  which  or  other  due  proof  of  payment, 
the  liability  upon  any  agreement  or  award  shall  be  discharged  of  record. 

Sec.  34.  Insurance.  Where  the  pajonent  of  compensation  to  the 
workman  is  insured,  by  a  policy  or  policies,  at  the  expense  of  the  em- 
ployer, the  insurer  shall  be  subrogated  to  the  rights  and  duties  under  this 
act  of  the  employer,  so  far  as  appropriate. 

Sec.  35.  Courts.  All  references  hereinbefore  to  a  district  court  of 
the  state  of  Kansas  having  jurisdiction  of  a  civil  action  between  the 
parties  shall  be  construed  as  relating  to  the  then  existing  code  of  civil 
procedure.  Such  court  shall  make  all  rules  necessary  and  appropriate  to 
carry  out  the  provisions  of  this  act. 

Sec.  36.  Actions.  A  workman's  right  to  compensation  under  this  act, 
may,  in  default  of  agreement  or  arbitration,  be  determined  and  enforced 
by  action  in  any  court  of  competent  jurisdiction.  In  every  such  action 
the  right  to  trial  by  jury  shall  be  deemed  waived  and  the  case  tried  by 
the  court  without  a  jury,  unless  either  party,  with  his  notice  of  trial,  or 
when  the  case  is  placed  upon  the  calendar  —  demand  a  jury  trial.  The 
judgment  in  the  action,  if  in  favor  of  the  plaintiff,  shall  be  for  a  lump  sum 
equal  to  the  amount  of  the  payments  then  due  and  prospectively  due 
under  this  act,  with  interest  on  the  payments  overdue,  or,  in  the  discre- 
tion of  the  trial  judge,  for  periodical  payments  as  in  an  award.  Where 
death  results  from  injury,  the  action  shall  be  brought  by  the  dependent 
or  dependents  entitled  to  the  compensation  or  by  the  legal  representa- 
tive of  the  deceased  for  the  benefit  of  the  dependents  as  herein  defined; 
and  in  such  action  the  judgment  may  provide  for  the  proportion  of  the 
award  to  be  distributed  to  or  between  the  several  dependents;  otherwise 
such  proportions  shall  be  determined  by  the  proper  probate  court.  An 
action  to  set  aside  a  release  or  other  discharge  of  liability  on  the  ground 
of  fraud  or  mental  incompetency  may  be  joined  with  an  action  for  com- 
pensation under  this  act.  No  action  or  proceeding  provided  for  in  this 
act  shall  be  brought  or  maintained  outside  of  the  state  of  Kansas,  and 
notice  thereof  may  be  given  by  publication  against  nonresidents  of  the 
state  in  the  manner  now  provided  by  article  7  of  chapter  95,  General 
Statutes  of  Kansas  of  1909  so  far  as  the  same  may  be  applicable,  and  by 


209 

personal  service  of  a  true  copy  of  the  first  publication  within  twenty-one 
days  after  the  date  of  the  said  first  publication  unless  excused  by  the  court 
upon  proper  showing  that  such  service  cannot  be  made. 

Sec.  37.  When  the  cause  of  action  accrues.  The  cause  of  action  shall 
be  deemed  in  every  case,  including  a  case  where  death  results  from  the 
injury  to  have  accrued  to  the  injured  workman  at  the  time  of  the  accident; 
and  the  time  limited  in  which  to  commence  an  action  for  compensation 
therefor  shall  run  as  against  him,  his  legal  representatives  and  depend- 
ents from  that  date. 

Sec.  38.  Attorney's  liens.  Contingent  fees  of  attorneys  for  services 
and  proceedings  under  this  act  shall  in  every  case  be  subject  to  approval 
by  the  court. 

Sec.  39.  Certificate  required.  If  the  superintendent  of  insurance  by 
and  with  the  advice  and  written  approval  of  the  attorney  general  cer- 
tifies that  any  scheme  of  compensation,  benefit  or  insurance  for  the  work- 
man of  an  employer  in  any  employment  to  which  this  act  applies, 
whether  or  not  such  scheme  includes  other  employers  and  their  work- 
men, provides  scales  of  compensation  not  less  favorable  to  the  workmen 
and  their  dependents  than  the  corresponding  scales  contained  in  this 
act,  and  that,  where  the  scheme  provides  for  contributions  by  the  work- 
man, the  scheme  confers  benefits  at  least  equivalent  to  those  contribu- 
tions, in  addition  to  the  benefits  to  which  the  workmen  would  have 
been  entitled  under  this  act  or  their  equivalents,  the  employer,  may,  while 
the  certificate  is  in  force,  contract  with  any  of  his  workmen  that  the 
provisions  of  the  scheme  shall  be  substituted  for  the  provisions  of  this 
act;  and  thereupon  the  employer  shall  I3e  liable  only  in  accordance  with 
that  scheme;  but,  save  as  aforesaid,  this  act  shall  not  apply  notwith- 
standing any  contract  to  the  contrary  made  after  this  act  becomes  a  law. 

Sec.  40.  Condition  to  certificate.  No  scheme  shall  be  so  certified 
which  does  not  contain  suitable  provisions  for  the  equitable  distribution 
of  any  moneys  or  securities  held  for  the  purpose  of  the  scheme,  after  due 
provision  has  been  made  to  discharge  the  liabilities  already  accrued,  if 
and  when  such  certificate  is  revoked  or  the  scheme  otherwise  terminated. 

Sec.  41.  Certificate  to  be  revocable.  If  at  any  time  the  scheme  no 
longer  fulfills  the  requirements  of  this  article,  or  is  not  fairly  adminis- 
tered, or  other  valid  and  substantial  reasons  therefor  exist,  the  superin- 
tendent of  insurance  by  and  with  the  attorney  general  shall  revoke  the 
certificate  and  the  scheme  shall  thereby  be  terminated. 

Sec.  42.  Information  to  be  reported.  Where  a  certified  scheme  is  in 
effect  the  employer  shall  answer  all  such  inquiries  and  furnish  all  such 
accounts  in  regard  thereto  as  may  be  required  by  the  superintendent. 

Sec.  43.  The  superintendent  of  insurance  may  make  all  rules  and 
regulations  necessary  to  carry  out  the  purposes  of  the  four  preceding 
sections. 

Sec.  44.  All  employers  as  defined  by  this  act  who  shall  elect  to  come 
within  the  provisions  of  this  act  and  of  all  acts  amendatory  hereof  shall 


210 

do  so  by  filing  a  statement  to  such  effect  with  the  secretary  of  state  of 
this  state  at  any  time  after  taking  effect  of  this  act,  which  election  shall 
be  binding  upon  such  employer  for  the  term  of  one  year  from  the  date  of 
the  filing  of  such  statement,  and  thereafter,  without  further  act  on  his 
part,  for  successive  terms  of  one  year  each,  unless  such  employer  shall 
at  least  sixty  days  prior  to  the  expiration  of  such  first  or  of  any  succeed- 
ing year,  file  in  the  office  of  the  secretary  of  state  a  notice  in  writing  to 
the  effect  that  he  withdraws  his  election  to  be  subject  to  the  provisions 
of  this  act.  Notice  of  such  election  or  withdrawal  shall  be  forthwith 
posted  by  such  employer  in  conspicuous  places  in  and  about  his  place  of 
business. 

Sec.  45.  Every  employee  entitled  to  come  within  the  provisions  of 
this  act,  shall  be  presumed  to  have  done  so  unless  he  serve  written  notice, 
before  injury,  upon  his  employer  that  he  elects  not  to  accept  thereunder 
and  thereafter  any  such  employee  desiring  to  change  his  election  shall 
only  do  so  by  serving  written  notice  thereof  upon  his  employer.  Any 
contract  wherein  an  employer  requires  of  an  employee  as  a  condition  of 
employment  that  he  shall  elect  not  to  come  within  the  provisions  of  this 
act  shall  be  void. 

Sec.  46.  In  any  action  to  recover  damages  for  a  personal  injury  sus- 
tained within  this  state  by  an  employee  (entitled  to  come  within  the  pro- 
visions of  this  act)  while  engaged  in  the  Une  of  his  duty  as  such  or  for 
death  resulting  from  personal  injury  so  sustained,  in  which  recovery  is 
sought  upon  the  ground  of  want  of  due  care  of  the  employer  or  of  any 
officer,  agent  or  servant  of  the  employer,  where  such  employer  is  within 
the  provisions  hereof,  it  shall  not  be  a  defense  to  any  employer  (as  herein 
in  this  act  defined)  who  shall  not  have  elected,  as  hereinbefore  provided, 
to  come  within  the  provisions  of  this  act:  (a)  That  the  employee  either 
expressly  or  impliedly  assumed  the  risk  of  the  hazard  complained  of; 
(6)  that  the  injury  or  death  was  caused  in  whole  or  in  part  by  the  want  of 
due  care  of  a  fellow  servant;  (c)  that  such  employee  was  guilty  of  con- 
tributory neghgence  but  such  contributory  negligence  of  said  employee 
shall  be  considered  by  the  jury  in  assessing  the  amount  of  recovery. 

Sec.  47.  In  an  action  to  recover  damages  for  a  personal  injury  sus- 
tained within  this  state  by  an  employee  (entitled  to  come  within  the  pro- 
visions of  this  act)  while  engaged  in  the  line  of  his  duty  as  such  or  for 
death  resulting  from  personal  injury  so  sustained  in  which  recovery  is 
sought  upon  the  ground  of  want  of  due  care  of  the  employer  or  of  any 
officer,  agent  or  servant  of  the  employer,  and  where  such  employer  has 
elected  to  come  and  is  within  the  provisions  of  this  act  as  hereinbefore 
provided,  it  shall  be  a  defense  for  such  employer  in  all  cases  where  said 
employee  has  elected  not  to  come  within  the  provisions  of  this  act;  (a) 
That  the  employee  either  expressly  or  impliedly  assumed  the  risk  of  the 
hazard  complained  of;  (b)  that  the  injury  or  death  was  caused  in  whole 
or  in  part  by  the  want  of  due  care  of  a  fellow  servant;  (c)  that  said  em- 
ployee was  guilty  of  contributory  negligence;    provided,  however,  that 


211 

none  of  these  defenses  shall  be  available  where  the  injury  was  caused  by 
the  willful  or  gross  negligence  of  such  employer,  or  of  any  managing 
officer,  or  managing  agent  of  said  employer  or  where  under  the  law  exist- 
ing at  the  time  of  the  death  or  injury  such  defenses  are  not  available. 

Sec.  48.  Nothing  in  this  act  shall  be  construed  to  amend  or  repeal 
section  6999  of  the  General  Statutes  of  Kansas  of  1909,  or  House  bill 
No.  240  of  the  Session  of  1911,  the  same  being  "An  act  relating  to  the 
liability  of  common  carriers  by  railroads  to  their  employees  in  certain 
cases,  and  repealing  all  acts  and  parts  of  acts  so  far  as  the  same  are  in 
conflict  herewith." 

Sec.  49.  This  act  shall  take  effect  and  be  in  force  from  and  after  its 
publication  in  the  statute  book,  and  the  first  day  of  January,  1912. 

Approved  March  14,  1911. 


MARYLAND. 

Laws  of  1912,  Chapter  837. 

An  Act  to  add  a  New  Article  to  the  Code  of  Public  General  Laws 
OF  THE  State  op  Maryland  under  Title  An  Act  to  facilitate 
the  Insurance  of  Employes  against  the  Consequence  of  Acci- 
dents   RESULTING    IN    PERSONAL    INJURY    OR    DeATH    AND    TO    PERMIT 

Agreements   between   Employers  and    Employes   with   Refer- 
ence TO  Such  Accidents. 

Section  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland  That 
it  shall  be  lawful  for  any  employer  to  make  a  contract  in  writing  with 
any  employe  whereby  the  parties  may  agree  that  employee  shall  become 
insured  against  accident  occurring  in  the  course  of  employment  which 
result  in  personal  injury  or  death,  in  accordance  with  the  provisions  of 
this  act,  and  that  in  consideration  of  such  insurance  the  employer  shall 
be  reUeved  from  the  consequence  of  acts  or  omissions  by  reason  of  which 
he  would  without  such  contract  become  liable  toward  such  employee  or 
toward  the  legal  representative,  widow,  widower,  or  next  of  kin  of  such 
employee. 

Sec.  2.  Such  insurance  shall  be  effected  in  some  casualty  company 
organized  under  the  laws  of  the  State  of  Maryland  or  admitted  to  do 
business  in  this  State,  provided  that  any  employer  employing  not  less 
than  fifteen  hundred  (1,500)  employees  may  establish  an  insurance  fund 
from  sums  contributed  by  himself  and  his  employees  upon  condition  that 
he  undertake  and  agree  to  make  up  any  deficiency  in  insurance  benefits 
that  may  arise  out  of  the  inadequacy  of  such  fund.  Such  fund  shall  be 
inviolably  appropriated  as  a  trust  fund  for  the  purposes  of  such  insurance 
and  shall  not  be  invested  otherwise.  Provision  shall  be  made  for  the  elec- 
tion by  the  insured  employees  of  an  advisory  committee,  which  shall  be 
kept  informed  regarding  the  state  of  the  insurance  fund,  and  shall  have 


212 

the  right  to  examine  the  books  kept  in  connection  therewith.  Such  books 
shall  also  be  subject  to  the  inspection  of  the  Insurance  Commissioner  of 
this  State  in  the  same  manner  as  books  of  insurance  companies  doing 
business  in  this  State.  Upon  the  request  of  the  employer  or  upon  the 
request  of  the  advisory  committee,  the  Insurance  Commissioner  shall  act 
as  depository  of  the  securities  in  which  such  funds  may  be  invested. 

If  any  employer  desires  to  discontinue  an  insurance  fund  maintained 
by  him,  or  if  he  discontinues  his  business  without  transferring  the  same  to 
a  successor  or  assign,  taking  over  and  agreeing  to  maintain  such  fund,  he 
shall  notify  the  Insurance  Commissioner  of  his  purpose,  who  shall  there- 
upon supervise  the  disposition  of  the  insurance  fund.  Such  fund  shall  be 
distributed  among  those  equitably  entitled  to  it  according  to  their  con- 
tribution (not  taking  into  consideration  expenses  of  the  management), 
and  where  those  entitled  to  any  part  of  the  fund  cannot  be  discovered 
or  ascertained  the  money  remaining  unclaimed  shall  be  paid  into  the 
Insurance  Department,  to  be  held  and  disposed  of  as  may  be  provided 
by  law. 

The  Insurance  Commissioner  shall  be  entitled  to  be  paid  out  of  such 
fund  the  reasonable  expenses  of  his  supervision,  including  a  compensa- 
tion not  to  exceed  ten  dollars  per  day  for  the  time  of  any  person  or  per- 
sons (other  than  a  salaried  employee  of  his  office)  employed  by  him  for 
the  purpose  of  such  supervision  necessarily  spent  in  connection  therewith. 

Compensation  Regardless  of  Negligence. 

Sec.  3.  Such  insurance  shall  cover  the  risk  of  personal  injury  by 
accident  arising  out  of  and  in  course  of  the  employment  resulting  in 
death,  provided  death  occur  within  twelve  months  from  the  time  of  such 
injury,  or  resulting  in  disability,  whether  the  same  be  total  or  partial,  per- 
manent or  temporary.  But  no  one  shall  be  entitled  to  any  benefit  here- 
under where  the  injury  is  the  result  of  the  employee's  intoxication,  or 
willful  and  deliberate  act  or  deliberate  intention  to  produce  such  injury. 

Sec.  4.  The  insurance  in  case  of  death  shall  be  for  the  benefit  of 
such  persons  being  the  widow,  widower,  father,  mother,  son  or  daughter, 
as  are  dependent  wholly  or  in  part  for  their  support  upon  the  earnings 
of  such  employee  (all  of  which  persons  are  hereafter  designated  as  de- 
pendents of  such  employee),  or  of  such  of  them  as  may  be  named  in  the 
contract  or  policy  to  which  it  refers  and  the  person  for  whose  benefit 
such  insurance  is  made  should  be  bound  by  the  agreement  authorized  by 
the  first  section  of  this  act. 

Sec.  5.  In  order  to  satisfy  the  requirement  of  this  act,  the  benefits 
payable  under  such  insurance  shall  be  at  least  as  follows; 

(I)     In  case  of  death: 

(a)  If  the  employee  insures  for  the  benefit  of  any  dependent  wholly 
dependent  upon  his  wages  at  the  time  of  his  death,  a  sum  equal  to  his 
wages  in  the  employment  of  said  employer  during  a  period  of  three  years 
next  preceding  the  accident,  but  not  less  in  any  case  than  the  sum  of  one 


213 

thousand  dollars;  provided,  that  the  amount  of  any  weekly  payment  made 
under  such  insurance  or  any  lump  sum  paid  in  redemption  thereof,  may 
be  deducted  from  such  sum;  and  if  the  period  of  the  employee's  employ- 
ment by  said  employer  has  been  less  than  said  three  years,  then  the 
amount  of  his  earnings  during  said  three  years  shall  be  deemed  to  be 
one  hundred  and  fifty-six  times  his  average  weekly  earnings  during  the 
period  of  his  actual  employment  by  said  employer. 

(b)  If  the  employee  insures  for  the  benefit  only  of  persons  partly 
dependent  upon  his  wages  at  the  time  of  his  death,  then  a  sum  equal  to 
the  payment  provided  for  the  benefit  of  persons  wholly  dependent,  less 
six  times  the  average  annual  earnings;  or  if  employed  for  less  than  a  year, 
then  less  three  hundred  times  the  average  weekly  earnings  of  said  de- 
pendent person  or  persons  partly  dependent  on  his  wages. 

(c)  If  the  employee  leaves  no  dependents,  then  the  reasonable  expenses 
of  his  medical  attendance  shall  be  paid,  and  in  addition  burial  expenses 
not  less  than  seventy-five  dollars  nor  more  than  one  hundred  dollars. 
And  the  contract  or  policy  therein  referred  to  may  provide  for  the  pay- 
ment, instead  of  a  lump  sum,  of  a  weekly  sum  which,  in  the  case  of  persons 
wholly  dependent,  shall  not  be  less  than  the  weekly  payment  in  case  of 
total  disability  hereinafter  provided  for,  and  which,  in  the  case  of  per- 
sons partly  dependent,  shall  not  be  less  than  the  weekly  payment  in 
case  of  total  disability,  less  the  amounts  earned  by  the  persons  partly 
dependent,  and  which  sum  may  be  divided  between  the  dependent  in  such 
a  manner  as  such  contract  or  policy  may  provide  or  as  may  otherwise  be 
agreed  upon;  or  such  contract  or  policy  may  provide  for  a  combination 
of  lump  sums,  weekly  payment,  or  for  the  substitute  of  one  for  the  other. 

(II)  In  case  of  injury  not  resulting  in  death,  when  total  disability 
results  from  the  injury,  a  weekly  payment  during  the  period  of  such  dis- 
ability shall  be  paid  to  the  insured,  which  shall  not  be  less  than  fifty  per 
cent,  of  his  average  weekly  wages  during  the  previous  twelve  months,  if 
he  has  been  so  long  employed  by  the  contracting  employer;  if  not,  then 
a  weekly  benefit  during  such  shorter  period  as  he  has  been  in  the  employ- 
ment of  said  employer. 

(III)  In  case  of  injury  not  resulting  in  death,  where  partial  disability 
results,  such  weekly  payments  shall  be  made  during  the  period  of  such 
partial  disability  as  is  equal  to  the  difference  between  the  weekly  benefit 
payment  during  the  period  of  total  disability  and  the  average  amount 
which  the  injured  person  is  able  to  earn  after  the  accident.  Loss  by 
actual  separation  at  or  above  the  wrist  or  ankles  of  both  hands  or  both 
feet,  or  of  one  hand  and  one  foot,  or  the  irrevocable  loss  of  both  eyes, 
shall  be  deemed  to  be  equal  to  total  disability.  The  loss  by  actual  sepa- 
ration at  or  above  the  wrist  or  ankle  of  one  hand  or  one  foot  shall  be  equal 
one-half  of  total  disability,  and  the  los.s  of  one  eye  shall  be  equal  to  one- 
fifth  of  total  disability.  Total  disability  shall  be  deemed  to  mean  in- 
ability to  carry  on  any  gainful  occupation.  The  contract  or  policy  herein 
referred  to  may  provide  that  no  benefit  shall  be  paid  in  case  of  any  injury 


214 

which  does  not  incapacitate  the  employee  for  a  period  of  at  least  one 
week  from  earning  full  wages  at  the  work  at  which  he  was  employed  at 
the  time  of  the  accident. 

Sec.  6,  Any  contract  in  order  to  satisfy  the  requirements  of  this  act 
shall  provide  that  the  employer  shall  contribute  not  less  than  fifty  per 
cent,  of  the  insurance  premiums  and  the  employees  shall  contribute  the 
remainder  of  the  premiums.  In  case  the  employer  provides  any  insur- 
ance fund  out  of  contributions  made  by  himself  and  his  own  employes 
as  above  provided,  such  employer  shall  pay  the  whole  of  the  expenses 
of  the  management  of  such  fund,  and  all  contributions  shall  be  paid  into 
such  fund  without  any  deduction  by  reason  of  such  expense. 

Sec.  7.  The  contract  may  provide  that  upon  penalty  of  forfeiture 
of  the  benefits  of  the  insurances,  the  employee  shall  give  reasonable 
and  timely  notice  to  his  employer,  to  be  fixed  by  the  terms  of  this  contract, 
of  any  accident  which  may  entitle  him  to  the  benefit  of  such  insurance; 
and  that  he  shall  submit  himself  to  medical  examination  as  required  by 
the  employer  at  the  employer's  expense. 

Sec.  8.  The  contract  may  provide  that  the  premium  payable  by 
the  employees  shall  be  deducted  from  their  wages.  An  employer  who 
shall  wilfully  and  feloniously  appropriate  the  amounts  so  deducted  from 
the  wages  to  any  use  other  than  the  payment  of  insurance  premium  as 
stipulated  in  the  contract,  shall  be  guilty  of  embezzlement  and  shall  be 
punished  accordingly. 

Sec.  9.  The  contract  between  the  employer  and  employee  may 
provide  that  the  insurance  premiums  shall  be  paid  into  the  hands  of  a 
treasurer  to  be  elected  or  appointed  by  the  employees  or  by  the  employer 
and  the  employees  in  such  manner  and  under  such  voting  arrangement 
as  the  contract  may  specify.  The  payment  of  the  premiums  to  the 
treasurer  shall  relieve  the  employer,  and  the  penalty  above  prescribed 
for  misappropriation  of  the  funds  required  to  be  appUed  to  insurance 
shall  apply  to  such  treasurer. 

Sec.  10.  In  case  of  non-payment  of  the  premiums  within  one  month 
after  the  same  are  payable,  the  insurance  company  shall  within  two 
months  after  the  expiration  of  such  month  send  notice  of  such  de- 
fault by  mail  to  the  insured  and  to  the  Insurance  Commissioner  of  the 
Stat«.  The  insurance  policy  or  contract  between  the  employer  and  em- 
ployee may  specify  a  shorter  period  than  the  one  herein  provided  for. 
Until  the  required  notice  shall  have  been  sent,  the  poUcy  shall  not  be 
forfeited  for  non-payment  of  the  premium. 

Sec.  11.  The  employer  may  also  advance  the  premiums  of  insur- 
ance for  such  number  of  employees  and  at  such  rates  as  may  be  agreed 
upon  between  him  and  the  insurance  company,  and  may  thereupon  be 
supphed  by  the  insurance  company  with  blank  poUcies  to  be  filled  in  by 
him  with  name  of  any  beneficiary  under  the  provisions  of  this  act,  and 
to  be  executed  by  him  as  agent  of  such  company,  and  he  may  thereupon 
reimburse  himself  for  the  amounts  payable  by  the  employee  by  deduct- 
ing the  same  from  the  wages  of  such  employee. 


215 

Sec.  12.  Such  contract  may  provide  that  upon  termination  of  his 
employment  from  any  cause  whatever  the  employee  and  his  dependent 
shall  cease  to  be  entitled  to  the  benefits  of  such  insurance  except  as  regards 
accidents  occurring  before  the  termination  of  his  employment. 

Arbitration. 

Sec.  13.  Such  contract  may  provide  that  any  controversy  regard- 
ing the  extent  of  disabiUty  or  the  extent  of  dependency,  or  any  contro- 
versy between  dependents  as  to  the  amounts  payable  to  them  respectively, 
shall  be  settled  by  arbitration,  the  arbitrations  to  be  named  by  mutual 
consent  of  the  parties;  and  should  the  parties  fail  to  agree  upon  an  arbi- 
trator; then  the  arbitrator  to  be  named  by  a  judge  of  the  Circuit  Court 
of  the  county  or  City  of  Baltimore  in  which  the  accident  happened,  and 
the  award  of  such  arbitrator  shall  be  binding  upon  both  employee  or  his 
dependents,  as  the  case  may  be. 

Sec.  14.  Any  insurance  paid  in  accordance  with  the  provisions  of 
'this  act  shall  not  be  liable  to  attachment  by  trustee,  garnishee  or  other 
process,  and  shall  not  be  seized,  taken,  appropriated  or  applied  by  any 
legal  or  equitable  process  or  by  operation  of  law,  to  pay  any  debt  or  liabil- 
ity of  the  insured  or  any  beneficiary,  nor  shall  any  claim  to  insurance 
money  be  assignable  by  payee  before  the  same  is  paid. 

Sec.  15.  A  contract  of  insurance  in  pursuance  of  the  terms  of 
this  act  shall  not  relieve  the  employer  from  hability  for  any  accident 
directly  due  to  his  failure  to  supply  any  safeguard  required  to  be  provided 
for  the  protection  of  employees,  by  or  piirsuant  to  any  statute  or  ordi- 
nance, or  any  regulation  under  any  statute  or  ordinance,  unless  it  shall 
have  been  impossible  to  comply  with  such  requirement  by  the  time  the 
accident  happened,  or  unless  the  enforcement  thereof  has  been  suspended 
or  order  of  a  court  of  competent  jurisdiction. 

Sec.  16.  Every  employer  shall  file  with  the  Insurance  Commissioner 
a  copy  of  the  form  of  contract  and  pohcy  which  he  shall  use  under 
the  provisions  of  this  act,  and  in  the  event  of  such  form  being  departed 
from  in  any  particular  case  shall  also  file  a  copy  of  such  particular  con- 
tract. If  he  shall  fail  to  do  so.  he  shall  be  liable  to  a  penalty  of  fifty  dol- 
lars in  each  case,  to  be  recovered  in  an  action  of  debt  in  the  name  of  the 
State. 

Sec.  17.  A  quarterly  report  of  all  settlement  and  pa5anent  of  insur- 
ance benefits  shall  be  filed  by  the  employer  with  the  Insurance  Commis- 
sioner. If  such  employer  shall  fail  to  make  such  report  in  thirty  days 
after  demand  by  Insurance  Commissioner,  he  shall  be  liable  to  a  penalty 
of  fifty  dollars,  to  be  recovered  in  an  action  of  debt  in  the  name  of  the 
State. 

Sec.  18.  The  Insurance  Commissioner  shall  prepare  blanks  of  con- 
tract and  policy  complying  with  the  provisions  of  this  act,  and  shall 
distribute  the  same,  upon  application,  free  of  charge. 

Sec.  19.    Nothing  in  this  act  contained  shall  be  construed  as  author- 


216 

izing  any  employer,  any  officer  or  agent  or  such  employer  to  require 
any  employees  or  any  person  seeking  employment,  as  a  condition  of  such 
employment  or  of  the  continuance  of  such  employment,  to  enter  into  a 
contract,  or  to  continue  in  such  contract,  such  as  is  authorized  to  be  made 
by  section  1  of  this  Act. 

Sec.  20.  All  provisions  in  the  statutes  inconsistent  with  this  act  are 
hereby  repealed. 

Sec.  21.  This  act  shall  take  effect  and  be  in  force  from  the  date  of 
its  passage.  Approved  April  15,  1912. 


MICHIGAN. 

House  Enrolled  Act  No.  3.  —  Session  1912. 
An  Act  to  promote  the  Welfare  of  the  People  of  this  State, 

RELATING   TO   THE    LIABILITY   OF   EMPLOYERS   FOR   INJURIES   OR   DeATH 

sustained  by  their  employes,  providing  compensation  for  the 
Accidental  Injury  to  or  Death  of  Employes  and  Methods  for 
THE  Payment  op  the  Same,  establishing  an  Industrial  Accident 
Board,  defining  its  Powers,  providing  for  a  Revieav  of  its  Awards, 
making  an  appropriation  to  carry  out  the  provisions  of  this 
Act,  and  restricting  the  Right  to  Compensation  or  Damages 
IN  Such  Cases  to  Such  as  are  provided  by  this  Act. 

The  People  of  the  State  of  Michigan  enact: 

Part  I. 

MODIFICATION   OF   REMEDIES. 

Section  1.  In  an  action  to  recover  damages  for  personal  injury  sus- 
tained by  an  employe  in  the  course  of  his  employment,  or  for  death  result- 
ing from  personal  injury  so  sustained,  it  shall  not  be  a  defense: 

(a)  That  the  employe  was  negligent,  unless  and  except  it  shall  appear 
that  such  negligence  was  willful; 

(b)  That  the  injury  was  caused  by  the  negligence  of  a  fellow-employe; 

(c)  That  the  employe  had  assumed  the  risks  inherent  in  or  incidental 
to,  or  arising  out  of  his  employment,  or  arising  from  the  failure  of  the 
employer  to  provide  and  maintain  safe  premises  and  suitable  appliances. 

Sec.  2.  The  provisions  of  Section  1  shall  not  apply  to  actions  to  re- 
cover damages  for  personal  injuries  sustained  by  household  domestic 
servants  and  farm  laborers. 

Sec.  3.  The  provisions  of  Section  1  shall  not  apply  to  actions  to 
recover  damages  for  the  death  of,  or  for  personal  injuries  sustained  by 
employes  of  any  employer  who  has  elected,  with  the  approval  of  the 
industrial  accident  board  hereinafter  created,  to  pay  compensation  in  the 
manner  and  to  the  extent  hereinafter  provided. 

Sec.  4.    Any  employer  who  has  elected,  with  the  approval  of  the 


217 

industrial  accident  board  hereinafter  created,  to  pay  compensation  as 
hereinafter  provided,  shall  not  be  subject  to  the  provisions  of  Section  1; 
nor  shall  such  employer  be  subject  to  any  other  liability  whatsoever, 
save  as  herein  provided  for  the  death  of  or  personal  injury  to  any  employe, 
for  which  death  or  injury  compensation  is  recoverable  under  this  act, 
except  as  to  employes  who  have  elected  in  the  manner  hereinafter  pro- 
vided not  to  become  subject  to  the  provisions  of  this  act. 

Sec.  5.  The  following  shall  constitute  employers  subject  to  the  pro- 
visions of  this  act: 

1.  The  State  and  each  county,  city,  township,  incorporated  village  and 
school  district  therein; 

2.  Every  person,  firm  and  private  corporation,  including  any  public 
service  corporation,  who  has  any  person  in  service  under  any  contract  of 
hire,  express  or  impHed,  oral  or  written,  and  who,  at  or  prior  to  the  time 
of  the  accident  to  the  employe  for  which  compensation  under  this  act 
may  be  claimed,  shall  in  the  manner  provided  in  the  next  section,  have 
elected  to  become  subject  to  the  provisions  of  this  act,  and  who  shall  not, 
prior  to  such  accident,  have  effected  a  withdrawal  of  such  election,  in 
the  manner  provided  in  the  next  section. 

Sec.  6.  Such  election  on  the  part  of  the  employers  mentioned  in  sub- 
division two  of  the  preceding  section,  shall  be  made  by  filing  with  the 
industrial  accident  board  hereinafter  provided  for,  a  written  statement 
to  the  effect  that  such  employer  accepts  the  provisions  of  this  act,  and 
that  he  adopts,  subject  to  the  approval  of  said  board,  one  of  the  four 
methods  provided  for  the  payment  of  the  compensation  hereinafter  speci- 
fied. The  filing  of  such  statement  and  the  approval  of  said  board  shall 
operate,  within  the  meaning  of  the  preceding  section,  to  subject  such 
employer  to  the  provisions  of  this  act  and  all  acts  amendatory  thereof 
for  the  term  of  one  year  from  the  date  of  the  filing  of  such  statement, 
and  thereafter,  without  further  act  on  his  part,  for  successive  terms  of 
one  year  each,  unless  such  employer  shall,  at  least  thirty  days  prior  to 
the  expiration  of  such  first  or  any  succeeding  year,  file  in  the  office  of 
said  Board  a  notice  in  writing  to  the  effect  that  he  desires  to  withdraw 
his  election  to  be  subject  to  the  provisions  of  this  act:  Provided,  however. 
That  such  employer  so  electing  to  become  subject  to  the  provisions  of 
this  act  shall,  within  ten  days  after  the  approval  by  said  board  of  his 
election  filed  as  aforesaid,  post  in  a  conspicuous  place  in  his  plant,  shop, 
mine  or  place  of  work,  or  if  such  employer  be  a  transportation  company, 
at  its  several  stations  and  docks,  notice  in  the  form  as  prescribed  and 
furnished  by  the  industrial  accident  board  to  the  effect  that  he  accepts 
and  will  be  bound  by  the  provisions  of  this  act. 

Sec.  7.  The  term  ''employe"  as  used  in  this  act,  shall  be  construed 
to  mean: 

1.  Every  person  in  the  service  of  the  State,  or  of  any  county,  city, 
township,  incorporated  village  or  school  district  therein,  under  any 
appointment,  or  contract  of  hire,  express  or  implied,  oral  or  written. 


218 

except  any  official  of  the  State,  or  of  any  county,  city,  township,  incor- 
porated village  or  school  district  therein:  Provided  that  one  employed 
by  a  contractor,  who  has  contracted  with  a  county,  city,  township,  incor- 
porated village,  school  district  or  the  State,  through  its  representatives, 
shall  not  be  considered  an  employe  of  the  State,  county,  city,  township, 
incorporated  village  or  school  district  which  made  the  contract; 

2.  Every  person  in  the  service  of  another  under  any  contract  of  hire, 
express  or  implied,  oral  or  written,  including  aliens,  and  also  including 
minors  who  are  legally  permitted  to  work  under  the  laws  of  the  State 
who,  for  the  purposes  of  this  act,  shall  be  considered  the  same  and  have 
the  same  power  to  contract  as  adult  employes,  but  not  including  any 
person  whose  emplojnnent  is  but  casual  or  is  not  in  the  usual  course  of 
the  trade,  business,  profession  or  occupation  of  his  employer. 

Sec.  8.  Any  employe  as  defined  in  subdivision  one  of  the  preceding 
section  shall  be  subject  to  the  provisions  of  this  act  and  of  any  act  amenda- 
tory thereof.  Any  employe  as  defined  in  subdivision  two  of  the  preced- 
ing section  shall  be  deemed  to  have  accepted  and  shall  be  subject  to  the 
provisions  of  this  act  and  of  any  act  amendatory  thereof  if,  at  the  time 
of  the  accident  upon  which  liability  is  claimed: 

1.  The  employer  charged  with  such  liability  is  subject  to  the  provisions 
of  this  act,  whether  the  employe  has  actual  notice  thereof  or  not;   and 

2.  Such  employe  shall  not,  at  the  time  of  entering  into  his  contract  of 
hire,  expressed  or  implied,  with  such  employer,  have  given  to  his  em- 
ployer notice  in  writing  that  he  elects  not  to  be  subject  to  the  provisions 
of  this  act;  or,  in  the  event  that  such  contract  of  hire  was  made  before 
such  employer  became  subject  to  the  provisions  of  this  act,  such  employe 
shall  have  given  to  his  employer  notice  in  writing  that  he  elects  not  to 
be  subject  to  such  provisions,  or  without  giving  either  of  such  notices 
shall  have  remained  in  the  service  of  such  employer  for  thirty  days  after 
the  employer  has  filed  with  said  board  an  election  to  be  subject  to  the 
terms  of  this  act.  An  employe  who  has  given  notice  to  his  employer  in 
writing  as  aforesaid  that  he  elects  not  to  be  subject  to  the  provisions  of 
this  act,  may  waive  such  claim  by  a  notice  in  writing,  which  shall  take 
effect  five  days  after  it  is  delivered  to  the  employer  or  his  agent. 

Part  II. 

COMPENSATION. 

Sec.  1.  If  an  employe  who  has  not  given  notice  of  his  election  not  to 
be  subject  to  the  provisions  of  this  act,  as  provided  in  Part  1,  Section  8, 
or  who  has  given  such  notice  and  has  waived  the  same  as  hereinbefore 
provided,  receives  a  personal  injury  arising  out  of  and  in  the  course  of 
his  employment  by  an  employer  who  is  at  the  time  of  such  injury  subject 
to  the  provisions  of  this  act,  he  shall  be  paid  compensation  in  the  manner 
and  to  the  extent  hereinafter  provided,  or  in  case  of  his  death  resulting 
from  such  injuries  such  compensation  shall  be  paid  to  his  dependents  as 
hereinafter  defined. 


219 

Sec.  2.  If  the  employe  is  injured  by  reason  of  his  intentional  and  wil- 
ful misconduct,  he  shall  not  receive  compensation  under  the  provisions 
of  this  act. 

Sec.  3.  No  compensation  shall  be  paid  under  this  act  for  any  injury 
which  does  not  incapacitate  the  employe  for  a  period  of  at  least  two  weeks 
from  earning  full  wages,  but  if  incapacity  extends  beyond  the  period  of 
two  weeks,  compensation  shall  begin  on  the  15th  day  after  the  injury: 
Provided,  however,  That  if  such  disability  continues  for  eight  weeks  or 
longer,  such  compensation  shall  be  computed  from  the  date  of  the  injury. 

Sec.  4.  During  the  first  three  weeks  after  the  injury  the  employer 
shall  furnish,  or  cause  to  be  furnished,  reasonable  medical  and  hospital 
services  and  medicines  when  they  are  needed. 

Sec.  5.  If  death  results  from  the  injury,  the  employer  shall  pay,  or 
cause  to  be  paid,  subject,  however,  to  the  provisions  of  Section  12  hereof, 
in  one  of  the  methods  hereinafter  provided,  to  the  dependents  of  the 
employe,  wholly  dependent  upon  his  earnings  for  support  at  the  time  of 
the  injury,  a  weekly  payment  equal  to  one-half  his  average  weekly  wages, 
but  not  more  than  ten  dollars  nor  less  than  four  dollars  a  week  for  a  period 
of  three  hundred  weeks  from  the  date  of  the  injury.  If  the  employe 
leaves  dependents  only  partly  dependent  upon  his  earnings  for  support 
at  the  time  of  his  injury,  the  weekly  compensation  to  be  paid  as  aforesaid 
shall  be  equal  to  the  same  proportion  of  the  weekly  payments  for  the 
benefit  of  persons  wholly  dependent  as  the  amount  contributed  by  the 
employe  to  such  partial  dependents  bears  to  the  annual  earnings  of  the 
deceased  at  the  time  of  his  injury.  When  weekly  payments  have  been 
made  to  an  injured  employe  before  his  death  the  compensation  to  de- 
pendents shall  begin  from  the  date  of  the  last  of  such  payments,  but  shall 
not  continue  more  than  three  hundred  weeks  from  the  date  of  the  injury. 

Sec.  6.  The  following  persons  shall  be  conclusively  presumed  to  be 
wholly  dependent  for  support  upon  a  deceased  employe: 

(a)  A  wife  upon  a  husband  with  whom  she  lives  at  the  time  of  his  death; 

(b)  A  husband  upon  a  wife  with  whom  he  lives  at  the  time  of  her  death; 

(c)  A  child  or  children  under  the  age  of  sixteen  years  (or  over  said  age, 
if  physically  or  mentally  incapacitated  from  earning)  upon  the  parent 
with  whom  he  is  or  they  are  living  at  the  time  of  the  death  of  such  parent, 
there  being  no  surviving  parent.  In  case  there  is  more  than  one  child 
thus  dependent,  the  death  benefit  shall  be  divided  equally  among  them. 
In  all  other  cases  questions  of  dependency,  in  whole  or  in  part,  shall  be 
determined  in  accordance  with  the  fact,  as  the  fact  may  be  at  the  time 
of  the  injury;  and  in  such  other  cases,  if  there  is  more  than  one  person 
wholly  dependent,  the  death  benefit  shall  be  divided  equally  among  them, 
and  persons  partly  dependent,  if  any,  shall  receive  no  part  thereof;  if 
there  is  no  one  wholly  dependent  and  more  than  one  person  partly  de- 
pendent, the  death  benefit  shall  be  divided  among  them  according  to 
the  relative  extent  of  their  dependency.  No  person  shall  be  considered 
a  dependent  unless  a  member  of  the  family  of  the  deceased  employe,  or 


220 

bears  to  him  the  relation  of  husband  or  widow,  or  lineal  descendant,  or 
ancestor,  or  brother,  or  sister. 

Sec.  7.  Questions  as  to  who  constitute  dependents  and  the  extent  of 
their  dependency  shall  be  determined  as  of  the  date  of  the  accident  to 
the  employe,  and  their  right  to  any  death  benefit  shall  become  fixed  as 
of  such  time,  irrespective  of  any  subsequent  change  in  conditions;  and 
the  death  benefit  shall  be  directly  recoverable  by  and  payable  to  the 
dependent  or  dependents  entitled  thereto,  or  their  legal  guardians  or 
trustees.  In  case  of  the  death  of  one  such  dependent  his  proportion  of 
such  compensation  shall  be  payable  to  the  surviving  dependents  pro 
rata.  Upon  the  death  of  all  such  dependents  compensation  shall  cease. 
No  person  shall  be  excluded  as  a  dependent  who  is  a  non-resident  alien. 
No  dependent  of  an  injured  employe  shall  be  deemed,  during  the  life  of 
such  employe,  a  party  in  interest  to  any  proceeding  by  him  for  the  enforce- 
ment of  collection  of  any  claim  for  compensation,  nor  as  respects  the 
compromise  thereof  by  such  employe. 

Sec.  8.  If  the  employe  leaves  no  dependents  the  employer  shall  pay, 
or  cause  to  be  paid  as  hereinafter  provided,  the  reasonable  expense  of  his 
last  sickness  and  burying,  which  shall  not  exceed  two  hundred  dollars. 

Sec.  9.  While  the  incapacity  for  work  resulting  from  the  injury  is 
total,  the  employer  shall  pay,  or  cause  to  be  paid  as  hereinafter  provided, 
to  the  injured  employe  a  weekly  compensation  equal  to  one-half  his 
average  weekly  wages,  but  not  more  than  ten  dollars  nor  less  than  four 
dollars  a  week;  and  in  no  case  shall  the  period  covered  by  such  compensa- 
tion be  greater  than  five  hundred  weeks,  nor  shall  the  total  amount  of 
all  compensation  exceed  four  thousand  dollars. 

Sec.  10.  While  the  incapacity  for  work  resulting  from  the  injury  is 
partial,  the  employer  shall  pay,  or  cause  to  be  paid  as  hereinafter  provided, 
to  the  injured  employe  a  weekly  compensation  equal  to  one-half  the  differ- 
ence between  his  average  weekly  wages  before  the  injury  and  the  average 
weekly  wages  which  he  is  able  to  earn  thereafter,  but  not  more  than  ten 
dollars  a  week;  and  in  no  case  shall  the  period  covered  by  such  compensa- 
tion be  greater  than  three  hundred  weeks  from  the  date  of  the  injury. 
In  cases  included  by  the  following  schedule  the  disability  in  each  such 
case  shall  be  deemed  to  continue  for  the  period  specified,  and  the  com- 
pensation so  paid  for  such  injury  shall  be  as  specified  therein,  to- wit: 

For  the  loss  of  a  thumb,  fifty  per  centum  of  the  average  weekly  wages 
during  sixty  weeks; 

For  the  loss  of  a  first  finger,  conjmonly  called  index  finger,  fifty  per 
centum  of  average  weekly  wages  during  thirty-five  weeks; 

For  the  loss  of  a  second  finger,  fifty  per  centum  of  average  weekly 
wages  during  thirty  weeks; 

For  the  loss  of  a  third  finger,  fifty  per  centum  of  average  weekly  wages 
during  twenty  weeks; 

For  the  loss  of  a  fourth  finger,  commonly  called  little  finger,  fifty  per 
centum  of  average  weekly  wages  during  fifteen  weeks; 


221 

The  loss  of  the  first  phalange  of  the  thumb,  or  of  any  finger,  shall  be 
considered  to  be  equal  to  the  loss  of  one-half  of  such  thumb,  or  finger, 
and  compensation  shall  be  one-haK  the  amounts  above  specified; 

The  loss  of  more  than  one  phalange  shall  be  considered  as  the  loss  of 
the  entire  finger  or  thumb:  Provided,  however,  that  in  no  case  shall  the 
amount  received  for  more  than  one  finger  exceed  the  amount  provided 
in  this  schedule  for  the  loss  of  a  hand; 

For  the  loss  of  a  great  toe,  fifty  per  centum  of  average  weekly  wages 
during  thirty  weeks; 

For  the  loss  of  one  of  the  toes  other  than  a  great  toe,  fifty  per  centum 
of  average  weekly  wages  during  ten  weeks; 

The  loss  of  the  first  phalange  of  any  toe  shall  be  considered  to  be  equal 
to  the  loss  of  one-half  of  such  toe,  and  compensation  shall  be  one-half  of 
the  amount  above  specified; 

The  loss  of  more  than  one  phalange  shall  be  considered  as  the  loss  of 
the  entire  toe; 

For  the  loss  of  a  hand,  fifty  per  centum  of  average  weekly  wages  dur- 
ing one  hundred  and  fifty  weeks; 

For  the  loss  of  an  arm,  fifty  per  centum  of  average  weekly  wages  dur- 
ing two  hundred  weeks; 

For  the  loss  of  a  foot,  fifty  per  centum  of  average  weekly  wages  dur- 
ing one  hundred  and  twenty-five  weeks; 

For  the  loss  of  a  leg,  fifty  per  centum  of  average  weekly  wages  during 
one  hundred  and  seventy-five  weeks; 

For  the  loss  of  an  eye,  fifty  per  centum  of  average  weekly  wages  dur- 
ing one  hundred  weeks; 

The  loss  of  both  hands,  or  both  arms,  or  both  feet,  or  both  legs,  or  both 
eyes,  or  of  any  two  thereof,  shall  constitute  total  and  permanent  dis- 
ability, to  be  compensated  according  to  the  provisions  of  Section  9. 

The  amounts  specified  in  this  clause  are  all  subject  to  the  same  limita- 
tions as  to  maximum  and  minimum  as  above  stated. 

Sec.  11.  The  term  "average  weekly  wages"  as  used  in  this  act  is 
defined  to  be  one  fifty-second  part  of  the  average  annual  earnings  of  the 
employe.  If  the  injured  employe  has  not  worked  in  the  employment  in 
which  he  was  working  at  the  time  of  the  accident,  whether  for  the  employer 
or  not,  during  substantially  the  whole  of  the  year  immediately  preceding 
his  injury,  his  average  annual  earnings  shall  consist  of  three  hundred  times 
the  average  daily  wage  or  salary  which  he  has  earned  in  such  employment 
during  the  days  when  so  employed.  If  the  injured  employe  has  not 
worked  in  such  employment  during  substantially  the  whole  of  such  im- 
mediately preceding  year,  his  average  annual  earnings  shall  consist  of 
three  hundred  times  the  average  daily  wage  or  salary  which  an  employe 
of  the  same  class  working  substantially  the  whole  of  such  immediately 
preceding  year  in  the  same  or  a  similar  employment  in  the  same  or  a 
neighboring  place,  shall  have  earned  in  such  employment  during  the  days 
when  so  employed.     In  cases  where  the  foregoing  methods  of  arriving  at 


222 

the  average  annual  earnings  of  the  injured  employe  cannot  reasonably 
and  fairly  be  applied,  such  annual  earnings  shall  be  taken  at  such  sum 
as,  having  regard  to  the  previous  earnings  of  the  injured  employe,  and 
of  other  employes  of  the  same  or  most  similar  class,  working  in  the  same 
or  most  similar  employment,  in  the  same  or  neighboring  locality,  shall 
reasonably  represent  the  annual  earning  capacity  of  the  injured  employe 
at  the  time  of  the  accident  in  the  employment  in  which  he  was  working 
at  such  time.  The  fact  that  an  employe  has  suffered  a  previous  dis- 
ability, or  received  compensation  therefor,  shall  not  preclude  compen- 
sation for  a  later  injury,  or  for  death,  but  in  determining  compensation 
for  the  later  injury,  or  death,  his  average  annual  earnings  shall  be  such 
sum  as  will  reasonably  represent  his  annual  earning  capacity  at  the  time 
of  the  later  injury,  in  the  employment  in  which  he  was  working  at  such 
time  and  shall  be  arrived  at  according  to  and  subject  to  the  limitations 
of  the  provisions  of  this  section.  The  weekly  loss  in  wages  referred  to  in 
this  act  shall  consist  of  such  percentage  of  the  average  weekly  earnings 
of  the  injured  employe,  computed  according  to  the  provisions  of  this 
section,  as  shall  fairly  represent  the  proportionate  extent  of  the  impair- 
ment of  his  earning  capacity  in  the  employment  in  which  he  was  working 
at  the  time  of  the  accident,  the  same  to  be  fixed  as  of  the  time  of  the  acci- 
dent, but  to  be  determined  in  view  of  the  nature  and  extent  of  the  injury. 

Sec.  12.  The  death  of  the  injured  employe  prior  to  the  expiration  of 
the  period  within  which  he  would  receive  such  weekly  pajonents  shall 
be  deemed  to  end  such  disability  an"d  all  hability  for  the  remainder  of 
such  payments  which  he  would  have  received  in  case  he  had  lived  shall 
be  terminated,  but  the  employer  shall  thereupon  be  liable  for  the  following 
death  benefits  in  lieu  of  any  further  disability  indemnity: 

If  the  injury  so  received  by  such  employe  was  the  proximate  cause  of 
his  death,  and  such  deceased  employe  leaves  dependents,  as  hereinbefore 
specified,  wholly  or  partially  dependent  on  him  for  support,  the  death 
benefit  shall  be  a  sum  sufficient,  when  added  to  the  indemnity  which 
shall  at  the  time  of  death  have  been  paid  or  become  payable  under  the 
provisions  of  this  act  to  such  deceased  employe,  to  make  the  total  com- 
pensation for  the  injury  and  death  exclusive  of  medical  and  hospital  serv- 
ices and  medicines  furnished  as  provided  in  Section  4  hereof  equal  to  the 
full  amount  which  such  dependents  would  have  been  entitled  to  receive 
under  the  provisions  of  Section  5  hereof  in  case  the  accident  had  resulted 
in  immediate  death,  and  such  benefits  shall  be  payable  in  weekly  install- 
ments in  the  same  manner  and  subject  to  the  same  terms  and  conditions 
in  all  respects  as  payments  made  under  the  provisions  of  said  Section  5. 

Sec.  13.  No  savings  or  insurance  of  the  injured  employe,  nor  any 
contribution  made  by  him  to  any  benefit  fund  or  protective  association 
independent  of  this  act,  shall  be  taken  into  consideration  in  determining 
the  compensation  to  be  paid  hereunder,  nor  shall  benefits  derived  from 
any  other  source  than  those  paid  or  caused  to  be  paid  by  the  employer 
as  herein  provided,  be  considered  in  fixing  the  compensation  under  this 
act. 


223 

Sec.  14.  If  an  injured  employe  is  mentally  incompetent  or  is  a  minor 
at  the  time  when  any  right  or  privilege  accrues  to  him  under  this  act,  his 
guardian  or  next  friend  may  in  his  behalf  claim  and  exercise  such  right 
or  privilege. 

Sec.  15.  No  proceeding  for  compensation  for  an  injury  under  this 
act  shall  be  maintained  unless  a  notice  of  the  injury  shall  have  been  given 
to  the  employer  three  months  after  the  happening  thereof,  and  unless  the 
claim  for  compensation  with  respect  to  such  injury  shall  have  been  made 
within  six  months  after  the  occurrence  of  the  same;  or,  in  case  of  the 
death  of  the  employe,  or  in  the  event  of  his  physical  or  mental  incapacity, 
within  six  months  after  death  or  the  removal  of  such  physical  or  mental 
incapacity. 

Sec.  16.  The  said  notice  shall  be  in  writing,  and  shall  state  in  ordi- 
nary language  the  time,  place  and  cause  of  the  injm-y;  and  shall  be  signed 
by  the  person  injured,  or  by  a  person  in  his  behalf,  or,  in  the  event  of 
his  death,  by  his  dependents  or  by  a  person  in  their  behalf. 

Sec.  17.  The  notice  shall  be  served  upon  the  employer  or  an  agent 
thereof.  Such  service  may  be  made  by  delivering  said  notice  to  the 
person  on  whom  it  is  to  be  served,  or  leaving  it  at  his  residence  or  place 
of  business,  or  by  sending  it  by  registered  mail  addressed  to  the  person 
or  corporation  on  whom  it  is  to  be  served,  at  his  last  known  residence  or 
place  of  business. 

Sec.  18.  A  notice  given  under  the  provisions  of  this  act  shall  not  be 
held  invalid  or  insufficient  by  reason  of  any  inaccuracy  in  stating  the  time, 
place  or  cause  of  the  injury,  unless  it  is  shown  that  it  was  the  intention 
to  mislead,  and  the  employer,  or  the  insurance  company  carrying  such 
risk,  or  the  commissioner  of  insurance  as  the  case  may  be,  was  in  fact 
misled  thereby.  Want  of  such  written  notice  shall  not  be  a  bar  to  pro- 
ceedings under  this  act,  if  it  be  shown  that  the  employer  had  notice  or 
knowledge  of  the  injury. 

Sec.  19.  After  an  employe  has  given  notice  of  any  injury,  as  pro- 
vided by  this  act,  and  from  time  to  time  thereafter  during  the  continu- 
ance of  his  disability,  he  shall,  if  so  requested  by  the  employer,  or  the 
insurance  company  carrying  such  risk,  or  the  commissioner  of  insurance, 
as  the  case  may  be,  submit  himself  to  an  examination  by  a  physician  or 
surgeon  authorized  to  practice  medicine  under  the  laws  of  the  State,  fur- 
nished and  paid  for  by  the  employer,  or  the  insurance  company  carrying 
such  risk,  or  the  commissioner  of  insurance,  as  the  case  may  be.  The 
employe  shall  have  the  right  to  have  a  physician  provided  and  paid  for 
by  himself  present  at  the  examination.  If  he  refuses  to  submit  himself 
for  the  examination,  or  in  any  way  obstructs  the  same,  his  right  to  com- 
pensation shall  be  suspended,  and  his  compensation  during  the  period  of 
suspension  may  be  forfeited.  Any  physician  who  shall  make  or  be  present 
at  any  such  examination  may  be  required  to  testify  under  oath  as  to  the 
results  thereof. 

Sec,  20.  No  agreement  by  an  employe  to  waive  his  rights  to  compen- 
sation under  this  act  shall  be  valid. 


224 

Sec.  21.  No  payment  under  this  act  shall  be  assignable  or  subject  to 
attachment  or  garnishment,  or  be  held  liable  in  any  way  for  any  debts. 
In  case  of  insolvency  every  liabiUty  for  compensation  under  this  act  shall 
constitute  a  first  lien  upon  all  the  property  of  the  employer  liable  there- 
for, paramount  to  all  other  claims  or  liens  except  for  wages  and  taxes, 
and  such  liens  shall  be  enforced  by  order  of  the  court. 

Sec.  22.  Whenever  any  weekly  payment  has  been  continued  for  not 
less  than  six  months,  the  liability  therefor  may  be  redeemed  by  the  pay- 
ment of  a  lump  sum  by  agreement  of  the  parties,  subject  to  the  approval 
of  the  industrial  accident  board,  and  said  board  may  at  any  time  direct 
in  any  case,  if  special  circumstances  be  found  which  in  its  judgment 
require  the  same,  that  the  deferred  payments  be  commuted  on  the  present 
worth  thereof  at  five  per  cent  per  annum  to  one  or  more  lump  sum  pay- 
ments, and  that  such  payments  shall  be  made  by  the  employer  or  the 
insurance  company  carrying  such  risk  or  commissioner  of  insurance  as 
the  case  may  be. 

Part  III. 

PROCEDURE. 

Section  1.  There  is  hereby  created  a  board  which  shall  be  known  as 
the  industrial  accident  board,  consisting  of  three  members  to  be  appointed 
by  the  governor,  by  and  with  the  consent  of  the  senate,  one  of  whom  shall 
be  designated  by  the  governor  as  chairman.  Appointments  to  fill  vacan- 
cies may  be  made  during  recesses  of  the  senate,  but  shall  be  subject  to 
confirmation  by  the  senate  at  the  next  ensuing  session  of  the  legislature. 
The  term  of  office  of  members  of  this  board  shall  be  six  years,  except  that 
when  first  constituted  one  member  shall  be  appointed  for  two  years,  one 
for  four  years,  and  one  for  six  years.  Thereafter  one  member  shall  be 
appointed  every  second  year  for  the  full  term  of  six  years.  No  more 
than  two  members  of  this  board  shall  belong  to  the  same  political  party. 

Sec.  2.  The  salary  of  each  of  the  members  so  appointed  by  the  gov- 
ernor shall  be  three  thousand  five  hundred  dollars  per  year.  The  board 
may  appoint  a  secretary  at  a  salary  of  not  more  than  two  thousand  five 
hundred  dollars  a  year,  and  may  remove  him.  The  board  shall  be  pro- 
vided with  an  office  in  the  capitol,  or  in  some  other  suitable  building  in 
the  city  of  Lansing,  in  which  its  records  shall  be  kept,  and  it  shall  also  be 
provided  with  necessary  office  furniture,  stationery  and  other  supplies. 
It  shall  provide  itself  with  a  seal  for  the  authentication  of  its  orders, 
awards  and  proceedings,  upon  which  shall  be  inscribed  the  words  "In- 
dustrial Accident  Board  —  Michigan  —  Seal."  It  shall  employ  such 
assistants  and  clerical  help  as  it  may  deem  necessary  and  fix  the  compensa- 
tion of  all  persons  so  employed:  Provided,  That  the  average  compensa- 
tion paid  to  such  employes  shall  not  exceed  one  thousand  dollars  per 
annum  for  each  person  employed,  and  all  such  clerical  assistants  shall  be 
subject  to  existing  laws  regulating  the  grading  and  compensation  of 
department  clerks.  The  members  of  the  board  and  its  assistants  shall 
be  entitled  to  receive  from  the  State  their  actual  and  necessary  expenses 


225 

while  traveling  on  the  business  of  the  board;  but  such  expenses  shall  be 
sworn  to  by  the  person  who  incurred  the  same,  and  be  approved  by  the 
chairman  of  the  board  before  payment  is  made.  All  such  salaries  and 
expenses  when  audited  and  allowed  by  the  state  board  of  auditors,  shall 
be  paid  by  the  state  treasurer  out  of  the  general  fund,  upon  warrant  of 
the  auditor  general.    • 

Sec.  3.  The  board  may  make  rules  not  inconsistent  with  this  act  for 
carrying  out  the  provisions  of  the  act.  Process  and  procedure  under  this 
act  shall  be  as  summary  as  reasonably  may  be.  The  board  or  any  mem- 
ber thereof  shall  have  the  power  to  administer  oaths,  subpoena  witnesses 
and  to  examine  such  parts  of  the  books  and  records  of  the  parties  to  a 
proceeding  as  relate  to  questions  in  dispute. 

Sec.  4.  The  board  shall  cause  to  be  printed  and  furnished  free  of 
charge  to  any  employer  or  employe  such  blank  forms  as  it  shall  deem 
requisite  to  facilitate  or  promote  the  efficient  administration  of  this  act; 
it  shall  provide  a  proper  record  book  in  which  shall  be  entered  and  in- 
dexed the  name  of  any  employer  who  shall  file  a  statement  of  election 
under  this  act,  and  the  date  of  the  filing  thereof  and  its  approval  by  such 
board,  and  a  separate  book  in  which  shall  be  entered  and  indexed  the 
name  of  every  employer  who  shall  file  his  notice  of  withdrawal  of  said 
election,  and  the  date  of  the  filing  thereof;  and  books  in  which  shall  be 
recorded  all  orders  and  awards  made  by  the  board;  and  such  other  books 
or  records  as  it  shall  deem  required  by  the  proper  and  efficient  adminis- 
tration of  this  act;  all  such  records  to  be  kept  in  the  office  of  the  board. 
Upon  the  filing  of  a  statement  of  election  by  an  employer  to  become 
subject  to  the  provisions  of  this  act,  the  board  shall  forthwith  cause 
such  notice  of  the  fact  to  be  given  by  requiring  said  employer  to  post 
such  notice  as  hereinbefore  provided;  and  the  board  shall  likewise 
cause  notice  to  be  given  of  the  filing  of  any  withdrawal  of  such  election; 
but  notwithstanding  the  failure  to  give,  or  the  insufficiency  of,  any  such 
notice,  knowledge  of  all  filed  statements  of  election  and  notices  of  with- 
drawal of  election,  and  of  the  time  of  the  filing  of  the  same,  shall  con- 
clusively be  imputed  to  all  employes. 

Sec.  5.  If  the  employer,  or  the  insurance  company  carrying  such  risk, 
or  commissioner  of  insurance,  as  the  case  may  be,  and  the  injured  em- 
ploye reach  an  agreement  in  regard  to  compensation  under  this  act,  a 
memorandum  of  such  agreement  shall  be  filed  with  the  industrial  acci- 
dent board,  and,  if  approved  by  it,  shall  be  deemed  final  and  binding 
upon  the  parties  thereto.  Such  agreements  shall  be  approved  by  said 
board  only  when  the  terms  conform  to  the  provisions  of  this  act. 

Sec.  6.  If  the  employer,  or  the  insurance  company  carrying  such 
risk,  or  the  commissioner  of  insurance,  as  the  case  may  be,  and  the  em- 
ploye fail  to  reach  an  agreement  in  regard  to  compensation  under  this 
act,  either  party  may  notify  the  industrial  accident  board,  who  shall 
thereupon  call  for  the  formation  of  a  committee  of  arbitration.  The  com- 
mittee of  arbitration  shall  consist  of  three  members,  one  of  whom  shall 


226 

be  a  member  of  the  industrial  accident  board,  and  shall  act  as  chairman. 
The  other  two  members  shall  be  named  respectively  by  the  two  parties. 

Sec.  7.  It  shall  be  the  duty  of  the  industrial  accident  board,  upon 
notification  that  the  parties  have  failed  to  reach  an  agreement,  to  re- 
quest both  parties  to  appoint  their  respective  representatives  on  the 
committee  of  arbitration.  The  board  shall  designate  one  of  its  members 
to  act  as  chairman,  and,  if  either  party  does  not  appoint  its  member  on 
this  committee  within  seven  days  after  notification,  as  above  provided, 
the  board  or  any  member  thereof  shall  fill  the  vacancy  and  notify  the 
parties  to  that  effect. 

Sec.  8.  The  committee  of  arbitration  shall  make  such  inquiries  and 
investigations  as  it  shall  deem  necessary.  The  hearings  of  the  committee 
shall  be  held  at  the  locality  where  the  injury  occurred,  and  the  decision 
of  the  committee  shall  be  filed  with  the  industrial  accident  board.  Unless 
a  claim  for  a  review  is  filed  by  either  party  within  seven  days,  the  decision 
shall  stand  as  the  decision  of  the  industrial  accident  board;  Provided, 
That  said  industrial  accident  board  may,  for  sufficient  cause  shown, 
grant  further  time  in  which  to  claim  such  review. 

Sec.  9.  The  industrial  accident  board  or  any  member  thereof  may 
appoint  a  duly  qualified  impartial  physician  to  examine  the  injured  em- 
ploye and  to  report.  The  fee  for  this  service  shall  be  five  dollars  and 
traveling  expenses,  but  the  board  may  allow  additional  reasonable  amounts 
in  extraordinary  cases. 

Sec.  10.  The  arbitrators  named  by  or  for  the  parties  to  the  dispute 
shall  each  receive  five  dollars  a  day  for  his  services,  but  the  Industrial 
Accident  Board  or  any  member  thereof  may  allow  additional  reasonable 
amounts  in  extraordinary  cases.  The  fees  of  such  arbitrators  and  other 
costs  of  such  arbitration,  not  exceeding,  however,  the  taxable  costs 
allowed  in  suits  at  law  in  the  circuit  courts  of  this  State,  shall  be  fixed 
by  the  board  and  paid  by  the  State  as  the  other  expenses  of  the  board 
are  paid.  The  fees  and  the  payment  thereof  of  all  attorneys  and  physi- 
cians for  services  under  this  act  shall  be  subject  to  the  approval  of  the 
industrial  accident  board. 

Sec.  11.  If  a  claim  for  review  is  filed,  as  provided  in  Part  III,  Section 
8,  the  industrial  accident  board  shall  promptly  review  the  decision  of  the 
committee  of  arbitration  and  such  records  as  may  have  been  kept  of  its 
hearings,  and  shall  also  if  desired  hear  the  parties,  together  with  such 
additional  evidence  as  they  may  wish  to  submit,  and  file  its  decision 
therein  with  the  records  of  such  proceedings.  Such  review  and  hearing 
may  be  held  in  its  office  at  Lansing  or  elsewhere  as  the  board  shall  deem 
advisable. 

Sec.  12.  The  findings  of  fact  made  by  said  industrial  accident  board 
acting  within  its  powers,  shall,  in  the  absence  of  fraud,  be  conclusive,  but 
the  supreme  court  shall  have  power  to  review  questions  of  law  involved 
in  and  final  decision  or  determination  of  said  industrial  accident  board: 
Provided,  That  application  is  made  by  the  aggrieved  party  within  thirty 
days  after  such  determination  by  certiorari,  mandamus  or  by  any  other 


227    • 

method  permissible  under  the  rules  and  practice  of  said  court  or  the  laws 
of  this  State,  and  to  make  such  further  orders  in  respect  thereto  as  jus- 
tice may  require. 

Sec.  13.  Either  party  may  present  a  certified  copy  of  the  decision  of 
such  industrial .  accident  board  approving  agreements  of  settlement  as 
provided  in  Part  III,  Section  5  hereof,  or  of  the  decision  of  such  commit- 
tee of  arbitration  when  no  claim  for  review  is  made  as  provided  in  Part 
III,  Section  8,  or  of  the  decision  of  such  industrial  accident  board  when 
a  claim  for  review  is  filed  as  provided  in  Part  III,  Section  11,  providing 
for  payment. of  compensation  under  this  act,  to  the  circuit  court  for  the 
county  in  which  such  accident  occurred,  whereupon  said  court  shall, 
without  notice,  render  a  judgment  in  accordance  therewith  against  said 
employer  and  also  against  any  insurance  company  carrying  such  risk 
under  the  provisions  of  this  act;  which  judgment,  until  and  unless  set 
aside  shall  have  the  same  effect  as  though  duly  rendered  in  an  action  duly 
tried  and  determined  by  said  court,  and  shall,  with  like  effect,  be  entered 
and  docketed. 

Sec.  14.  Any  weekly  payment  under  this  act  may  be  reviewed  by  the 
Industrial  Accident  Board  at  the  request  of  the  employer,  or  the  insurance 
company  carrying  such  risks,  or  the  commissioner  of  insurance,  as  the 
case  may  be,  or  the  employe;  and  on  such  review  it  may  be  ended,  dimin- 
ished or  increased,  subject  to  the  maximum  and  minimum  amounts  above 
provided,  if  the  board  finds  that  the  facts  warrant  such  action. 

Sec.  15.  Where  the  injury  for  which  compensation  is  payable  under 
this  act  was  caused  under  circumstances  creating  a  legal  liability  in  some 
person  other  than  the  employer  to  pay  damages  in  respect  thereof,  the 
employe  may  at  his  option  proceed  either  at  law  against  that  person  to 
recover  damages,  or  against  the  employer  for  compensation  under  this 
act,  but  not  against  both,  and  if  compensation  be  paid  under  this  act  the 
employer  may  enforce  for  his  benefit  or  for  that  of  the  insurance  company 
carrying  such  risk,  or  the  commissioner  of  insurance,  as  the  case  may 
be,  the  Uability  of  such  other  person. 

Sec.  16.  All  questions  arising  under  this  act,  if  not  settled  by  agree- 
ment by  the  parties  interested  therein,  shall,  except  as  otherwise  herein 
provided,  be  determined  by  the  industrial  accident  board. 

Sec.  17.  Every  employer  shall  hereafter  keep  a  record  of  all  injuries, 
fatal  or  otherwise,  received  by  his  employes  in  the  course  of  their  employ- 
ment. Within  ten  days  after  the  occurrence  of  an  accident  resulting  in 
personal  injury  a  report  thereof  shall  be  made  in  writing  to  the  industrial 
accident  board  on  blanks  to  be  procured  from  the  board  for  that  purpose. 
The  said  reports  shall  contain  the  name  and  nature  of  the  business  of  the 
employer,  the  location  of  his  establishment  or  place  of  work,  the  name, 
age,  sex  and  occupation  of  the  injured  employe,  and  shall  state  the  time, 
the  nature  and  cause  of  the  injury,  and  such  other  information  as  may  be 
required  by  the  board.  Any  employer  who  refuses  or  neglects  to  make 
the  report  required  by  this  section  shall  be  punished  by  a  fine  of  not  more 
than  fifty  dollars  for  each  offense. 


228 


Part  IV. 

METHOD   OF  PAYMENT. 

Section  1.  Every  employer  filing  his  election  to  become  subject  to 
the  provisions  of  this  act,  as  hereinbefore  set  forth,  shall  have  the  right 
to  specify  at  the  time  of  doing  so,  subject  to  the  approval  of  said  indus- 
trial accident  board,  which  of  the  following  methods  for  the  pajmient 
of  such  compensation  he  desires  to  adopt,  to  wit: 

First.  Upon  furnishing  satisfactory  proof  to  said  board  of  his  solvency 
and  financial  ability  to  pay  the  compensation  and  benefits  hereinbefore 
provided  for,  to  make  such  payments  directly  to  his  employes,  as  they 
may  become  entitled  to  receive  the  same  under  the  terms  and  conditions 
of  this  act;  or 

Second.  To  insure  against  such  liability  in  any  employers'  liability 
company  authorized  to  take  such  risks  in  the  state  of  Michigan;  or 

Third.  To  insure  against  such  liability  in  any  employers'  insurance 
association  organized  under  the  laws  of  the  state  of  Michigan ;  or 

Fourth.  To  request  the  commissioner  of  insurance  of  the  state  of  Michi- 
gan to  assume  the  administration  of  the  disbursement  of  such  compensa- 
tion exclusive  of  that  provided  for  in  Part  II,  Section  4  herein,  and  the 
collection  of  the  premiums  and  assessments  necessary  to  pay  the  same, 
as  provided  in  Part  V  hereof,  said  board,  however,  shall  have  the  right, 
from  time  to  time  to  review  and  alter  its  decision  in  approving  the  elec- 
tion of  such  employer  to  adopt  any  one  of  the  foregoing  methods  of  pay- 
ment, if  in  its  judgment  such  action  is  necessary  or  desirable  to  secure 
and  safeguard  such  payments  to  employes. 

Sec.  2.  Nothing  herein  shall  affect  any  existing  contract  for  employ- 
ers' liability  insurance  or  affect  the  organization  of  any  mutual  or  other 
insurance  company,  or  any  arrangement  now  existing  between  employ- 
ers and  employes,  providing  for  the  payment  to  such  employes,  their 
families,  dependents  or  representatives,  sick,  accident  or  death  benefits, 
in  addition  to  the  compensation  provided  for  by  this  act.  But  liabihty 
for  compensation  under  this  act  shall  not  be  reduced  or  affected  by  any 
insurance,  contribution  or  other  benefit  whatsoever,  due  to  or  received 
by  the  person  entitled  to  such  compensation,  and  the  person  so  entitled 
shall,  irrespective  of  any  insurance  or  other  contract,  have  the  right  to 
recover  the  same  directly  from  the  employer;  and  in  addition  thereto, 
the  right  to  enforce  in  his  own  name,  in  the  manner  provided  in  this  act, 
the  liability  of  any  insurance  company  or  of  any  employers'  association 
organized  under  the  laws  of  the  state  of  Michigan,  or  the  commissioner 
of  insurance,  who  may,  in  whole  or  in  part,  "have  insured  the  hability  for 
such  compensation:  Provided,  however,  That  payment  in  whole  or  in 
part  of  such  compensation  by  either  the  employer,  or  the  insurance  com- 
pany carrying  such  risk,  or  the  commissioner  of  insurance  as  the  case 
may  be,  shall,  to  the  extent  thereof  be  a  bar  to  recover  against  the  other, 
of  the  amount  so  paid. 


229 

Sec.  3.  Every  contract  for  the  insurance  of  the  compensation  herein 
provided  for,  or  against  liability  therefor,  shall  be  deemed  to  be  made 
subject  to  the  provisions  of  this  act,  and  provisions  thereof  inconsistent 
with  this  act  shall  be  void.  No  company  shall  enter  into  any  such  con- 
tract for  insurance  unless  such  company  shall  have  been  approved  by 
the  commissioner  of  insurance  as  provided  by  law. 

Sec.  4.  Any  employer  against  whom  liability  may  exist  for  compensa- 
tion under  this  act  may,  with  the  approval  of  the  industrial  accident 
board,  be  relieved  therefrom  by: 

1.  Depositing  the  present  value  of  the  total  unpaid  compensation  for 
which  such  liability  exists,  assuming  interest  at  three  per  centum  per  an- 
num, with  such  trust  company  of  this  state  as  shall  be  designated  by  the 
employe  or  by  his  dependents,  in  case  of  his  death,  and  such  liability 
exists  in  their  favor,  or  in  default  of  such  designation  by  him,  or  them, 
after  ten  days'  notice  in  writing  from  the  employer,  with  such  trust  com- 
pany of  this  state  as  shall  be  designated  by  the  industrial  accident  board; 
or 

2.  By  the  purchase  of  an  annuity,  within  the  limitations  provided  by 
law,  in  any  insurance  company  granting  annuities  and  licensed  in  this 
state,  which  may  be  designated  by  the  employe,  or  his  dependents,  or 
the  industrial  accident  board,  as  provided  in  subsection  1  of  this  Section. 

Part  V. 

ADMINISTRATION   BY  COMMISSIONER   OF   INSURANCE. 

Section  1.  Whenever  five  or  more  employers,  who  have  become  sub- 
ject to  the  provisions  of  this  act,  and  who  have  on  their  pay-rolls  an 
aggregate  number  of  not  less  than  three  thousand  employes,  shall  in  writ- 
ing request  the  commissioner  of  insurance  so  to  do,  he  shall  assume  charge 
of  levying  and  collection  from  them  such  premium  and  dividends  as  may 
from  time  to  time  be  necessary  to  pay  the  sums  which  shall  become  due 
their  employes,  or  dependents  of  their  employes,  as  compensation  under 
the  provisions  of  this  act,  and  also  the  expense  of  conducting  the  adminis- 
tration of  such  funds;  and  shall  disburse  the  same  to  the  persons  entitled 
to  receive  such  compensation  under  the  provisions  of  this  act:  Provided, 
however.  That  neither  the  commissioner  of  insurance  nor  the  state  of 
Michigan  shall  become  or  be  liable  or  responsible  for  the  payment  of 
claims  for  compensation  under  the  provisions  of  this  act  beyond  the  extent 
of  the  funds  so  collected  and  received  by  him  as  hereinafter  provided. 

Sec.  2.  The  commissioner  of  insurance  shall  immediately  upon  assum- 
ing the  administration  of  the  collection  and  disbursement  of  the  moneys 
referred  to  in  the  preceding  section,  cause  to  be  created  in  the  state  treas- 
ury a  fund  to  be  known  as: 


230 


ACCIDENT    FUND. 

Each  such  employer  shall  contribute  to  this  fund  to  the  extent  of  such 
premiums  or  assessments  as  the  commissioner  shall  deem  necessary  to 
pay  the  compensation  accruing  under  this  act  to  employes  of  such  employ- 
ers or  to  their  dependents,  which  premiums  and  assessments  shall  be 
levied  in  the  manner  and  proportion  hereinafter  set  forth.  The  commis- 
sioner of  insurance  shall  give  a  good  and  sufficient  bond  in  the  sum  of 
twenty-five  thousand  dollars,  executed  by  some  surety  company  author- 
ized to  do  business  in  the  state  of  Michigan,  covering  the  collection  and 
disbursement  of  all  moneys  that  may  come  into  his  hands  under  the  pro- 
visions of  this  act.  The  premium  on  said  bond  shall  be  paid  out  of  the 
general  funds  of  the  state  on  an  order  of  the  auditor  general.  Said  bond 
must  be  approved  by  the  board  of  state  auditors. 

Sec.  3.  It  is  the  intention  that  the  amounts  raised  for  such  fund  shall 
ultimately  become  neither  more  nor  less  than  self-supporting  and  the 
premiums  or  assessments  levied  for  such  purpose  shall  be  subject  to  read- 
justment from  time  to  time  by  the  commissioner  of  insurance  as  may 
become  necessary. 

Sec.  4.  The  commissioner  of  insurance  may  classify  the  establish- 
ments or  works  of  such  employers  in  groups  in  accordance  with  the  nature 
of  the  business  in  which  they  are  engaged  and  the  probable  risk  of  injury 
to  their  employes  under  existing  conditions.  ,  He  shall  determine  the 
amount  of  the  premiums  or  assessments  which  such  employers  shall  pay 
to  said  accident  fund,  and  may  prescribe  when  and  in  what  manner  such 
premiums  and  assessments  shall  be  paid,  and  may  change  the  amount 
thereof  both  in  respect  to  any  or  all  of  such  employers  from  time  to  time, 
as  circumstances  may  require,  and  the  condition  of  their  respective  plants, 
establishments  or  places  of  work  in  respect  to  the  safety  of  their  employes 
may  justify,  but  all  such  premiums  or  assessments  shall  be  levied  on  a 
basis  that  shall  be  fair,  equitable  and  just  as  among  such  employers.  At 
the  beginning  of  each  fiscal  year  it  shall  be  the  duty  of  the  commissioner 
of  insurance  to  call  for  the  required  payment  of  premiums  and  such 
amounts  as  shall,  together  with  any  balance  in  the  accident  fund  in  his 
judgment  and  subject  to  the  approval  of  said  accident  board  be  sufficient 
to  enable  him  to  pay  all  sums  which  may  become  due  and  payable  to  the 
employes  of  any  such  employer  who  has  become  subject  to  the  provisions 
of  Part  V  of  this  act  and  also  the  exp>enses  of  administering  such  funds 
during  the  following  year. 

Sec.  5.  If  any  employer  shall  make  default  in  the  payment  of  any 
contribution,  premium  or  assessment  required  as  aforesaid  by  the  com- 
missioner of  insurance,  the  sum  due  shall  be  collected  by  an  action  at 
law  in  the  name  of  the  state  as  plaintiff,  and  such  right  of  action  shall  be 
in  addition  to  any  other  right  of  action  or  remedy.  In  case  any  injury 
happens  to  any  of  the  workmen  of  such  employer  during  the  period  of 
any  default  in  the  pajonent  of  any  such  premium,  assessment  or  contribu- 


231 

tion,  the  defaulting  employer  shall  not,  if  such  default  be  after  demand 
for  payment,  be  entitled  to  the  benefits  of  this  act,  but  shall  be  liable  to 
suit  by  the  injured  workman,  or  by  his  dependents  in  case  death  results 
from  such  accident,  as  if  he  had  not  elected  to  become  subject  to  this 
act.  In  case,  however,  the  amount  actually  collected  in  by  such  injured 
workman,  or  his  dependents,  shall  equal  or  exceed  the  compensation  to 
which  the  plaintiff  therein  would  be  entitled  under  this  act,  the  plaintiff 
shall  not  be  paid  anything  out  of  said  accident  fund.  If  the  said  amount 
shall  be  less  than  such  compensation  under  this  act,  the  accident 
fund  shall  contribute  the  amount  of  the  deficiency.  The  person  so 
entitled  under  the  provisions  of  this  section  shall  have  the  choice,  to  be 
exercised  before  suit,  of  proceeding  by  suit  or  taking  under  this  act.  If 
such  person  shall  take  under  this  act,  the  cause  of  action  against  the 
employer  shall  be  assigned  to  the  state  for  the  benefit  of  the  accident 
fund. 

Sec.  6.  Any  employer  subject  to  the  provisions  of  Part  V  of  this  act, 
who  has  complied  with  all  the  rules,  regulations  and  demands  of  the  indus- 
trial accident  board  and  the  commissioner  of  insurance,  may  withdraw 
therefrom  at  the  expiration  of  the  period  of  one  year  for  which  he  has 
elected  to  become  subject  to  the  provisions  of  this  act:  Provided,  how- 
ever. That  he  shall  give  written  notice  of  such  withdrawal  to  said  com- 
missioner of  insurance  at  least  thirty  days  before  the  expiration  of  such 
period:  And  provided  further.  That  if  at  the  time  of  such  withdrawal 
liability  may  exist  against  employer  for  compensation  to  employes  who 
have  been  theretofore  killed  or  injured,  as  hereinbefore  provided,  such 
employer  shall  either  relieve  himself  and  the  commissioner  of  insurance 
from  such  liability  in  the  manner  provided  in  Part  IV,  Section  4  of  this 
act,  or  shall  otherwise  protect  and  indemnify  said  commissioner  of  insur- 
ance against  such  liability  in  such  reasonable  manner  as  he  may  require. 

Sec.  7.  In  case  any  controversy  shall  arise  between  the  commissioner 
of  insurance  and  any  employer  subject  to  the  provisions  of  Part  V  of  this 
act,  relative  to  any  rule  or  regulation  adopted  by  said  commissioner  of 
insurance,  or  any  decision  made  by  him  in  respect  to  the  collection,  admin- 
istration and  disbursement  of  such  funds,  or  in  case  any  controversy 
shall  arise  between  any  employe  claiming  compensation  under  the  pro- 
visions of  this  act  and  said  commissioner  of  insurance,  all  such  contro- 
versies of  every  kind  and  nature  shall  be  subject  to  review  in  like  manner 
and  with  the  same  force  and  effect  in  all  respects,  as  is  heretofore  provided 
in  respect  to  differences  arising  through  the  administration  of  such  funds 
by  the  employer,  or  by  a  liability  insurance  company  or  by  an  employers' 
mutual  insurance  association. 

Sec.  8.  The  books,  records  and  payrolls  of  each  employer  subject  to 
the  provisions  of  Part  V  of  this  act  shall  always  be  open  to  inspection  by 
the  commissioner  of  insurance,  or  his  duly  authorized  agent  or  repre- 
sentative, for  the  purpose  of  ascertaining  the  correctness  of  the  amount 
of  the  pay-roll  reported,  the  number  of  men  employed,  and  such  other 


232 

information  as  said  commissioner  may  require  in  the  administration  of 
said  funds.  Refusal  on  the  part  of  any  such  employer  to  submit  said 
books,  records  and  pay-rolls  for  such  inspection,  shall  subject  the  offend- 
ing employer  to  a  penalty  of  fiftj^  dollars  for  each  offense,  to  be  collected 
by  civil  action  in  the  name  of  the  state  and  paid  into  the  accident  fund, 
and  the  individual  who  shall  personally  give  such  refusal  shall  be  guilty 
of  a  misdemeanor. 

Sec.  9.  The  commissioner  of  insurance  shall  issue  proper  receipts  for 
aU  moneys  so  collected  and  received  from  employers,  as  aforesaid,  shall 
take  receipts  for  all  sums  paid  to  employes  for  compensation  under  the 
provisions  of  this  act,  and  shall  keep  full  and  complete  records  of  all  busi- 
ness transacted  by  him  in"  the  administration  of  such  funds.  He  may 
employ  such  deputies  and  assistants  and  clerical  help  as  may  be  necessary 
arid  as  the  board  of  state  auditors  may  authorize,  for  the  proper  adminis- 
tration of  said  funds  and  the  performance  of  the  duties  imposed  upon 
him  by  the  provisions  of  this  act,  at  such  compensation  as  may  be  fixed 
by  said  board  of  state  auditors,  and  may  also  remove  them.  The  com- 
missioner of  insurance  and  such  deputies  and  assistants  shall  be  entitled 
to  receive  from  the  state  their  actual  and  necessary  expenses  while  travel- 
ing on  the  business  of  the  board,  but  all  such  salaries  and  expenses  so 
authorized  by  the  provisions  of  this  act  shall  be  charged  to  and  paid  out 
of  said  Accident  Fund.  He  shall  include  in  his  annual  report  a  full  and 
correct  statement  of  the  administration  of  such  fund,  showing  its  finan- 
cial status  and  outstanding  obligations,  the  claims  and  the  amount  paid 
on  each  claim,  claims  not  paid,  claims  contested  and  why,  and  general 
statistics  in  respect  to  all  business  transacted  by  him  under  the  provisions 
of  this  act. 

Sec.  10.  Disbursements  from  said  accident  fund  shall  be  made  only 
upon  warrants  approved  by  the  state  board  of  auditors  upon  vouchers 
therefor  transmitted  to  them  by  the  commissioner  of  insurance.  If  at 
any  time  there  shall  not  be  sufficient  money  in  said  fund  wherewith  to 
pay  the  same,  the  employer  on  account  of  whose  workmen  it  was  that 
such  warrant  was  drawn  shall  pay  the  same,  and  he  shall  be  credited 
upon  his  next  following  contribution  to  such  fund  the  amount  so  paid, 
with  interest  thereon  at  the  legal  rate,  from  the  date  of  such  paj^ment  to 
the  date  such  next  following  contribution  becomes  payable,  and  if  the 
amount  of  the  credit  shall  exceed  the  amount  of  the  contribution,  he  shall 
be  repaid  such  excess. 

Sec.  11.  If  this  act  shall  be  thereafter  repealed,  all  moneys  which  are 
in  the  accident  fund  at  the  time  of  such  repeal  shall  be  subject  to  disposi- 
tion under  the  direction  of  the  circuit  court  for  the  county  of  Ingham, 
with  due  regard,  however,  to  the  obligation  incurred  and  existing  to  pay 
compensation  under  the  provisions  of  this  act. 


23^ 


Part  VI. 

MISCELLANEOUS  PROVISIONS. 

Section  1.  If  the  employe,  or  his  dependents,  in  case  of  his  death, 
of  any  employer  subject  to  the  provisions  of  this  act  files  any  claim  with, 
or  accepts  any  payment  from  such  employer,  or  any  insurance  company 
carrying  such  risks,  or  from  the  commissioner  of  insurance  on  account  of 
personal  injury,  or  makes  any  agreement,  or  submits  any  question  to 
arbitration  under  this  act,  such  action  shall  constitute  a  release  to  such 
employer  of  all  claims  or  demands  at  law,  if  any,  arising  from  such  injury. 

Sec.  2.  If  the  provisions  of  this  act  relating  to  eompensauon  for  in- 
juries to  or  death  of  workmen  shall  be  repealed  or  adjudged  invalid  or 
unconstitutional,  the  period  intervening  between  the  occurrence  of  an 
injury  or  death  and  such  repeal,  or  the  final  adjudication  of  invalidity, 
shall  not  be  computed  as  a  part  of  the  time  limited  by  law  for  the  com- 
mencement of  any  action  relating  to  such  injury  or  death,  but  the  amount 
of  any  compensation  which  may  have  been  paid  for  any  such  injury  shall 
be  deducted  from  any  judgment  for  damages  recovered  on  account  of 
such  injuiy. 

Sec.  3.  This  act  shall  not  affect  any  cause  of  action  existing  or  pend- 
ing before  it  went  into  effect. 

Sec.  4.  The  provisions  of  this  act  shall  apply  to  employers  and  work- 
men engaged  in  intrastate  commerce,  and  also  to  those  engaged  in  inter- 
state or  foreign  commerce,  for  whom  a  rule  of  liability  or  method  of 
compensation  has  been  or  may  be  established  by  the  Congress  of  the  United 
States,  only  to  the  extent  that  their  mutual  connection  with  intrastate 
work  may  and  shall  be  clearly  separable  and  distinguishable  from  inter- 
state or  foreign  commerce,  except  that  any  such  employer  and  any  of 
his  workmen  working  only  in  this  state,  may,  subject  to  the  approval  of 
the  industrial  accident  board,  arfd  so  far  as  not  forbidden  by  any  act  of 
congress,  voluntarily  accept  and  become  bound  by  the  provisions  of  this 
act  in  like  manner  and  with  the  same  force  and  effect  in  all  respects,  as  is 
hereinbefore  provided  for  other  employers  and  their  workmen. 

Sec.  5.  All  acts  or  parts  of  acts  inconsistent  with  this  act  are  to  be 
deemed  replaced  by  this  act,  and  to  that  end  are  hereby  repealed. 

Sec.  6.  The  legislature  intends  that  Part  V  of  this  act  shall  be  deemed 
separate  from  the  other  parts  thereof,  so  that  if  said  Part  V  should  fail  or 
be  adjudged  invalid  or  unconstitutional  it  shall  in  no  way  affect  any  other 
part  of  this  act. 

Sec.  7.  To  carry  out  the  provisions  of  this  act  there  is  hereby  appro- 
priated for  the  expenses  of  the  industrial  accident  board  for  the  fiscal 
year  ending  June  thirtieth,  nineteen  hundred  thirteen,  and  annually 
thereafter,  the  sum  of  twenty-five  thousand  dollars.  The  auditor  gen- 
eral shall  add  to  and  incorporate  into  the  state  tax  the  sum  of  twenty-five 
thousand  dollars  annually,  which  said  sum  shall  be  included  in  the  state 
taxes  apportioned  by  the  auditor  general  on  all  taxable  property  of  the 


234 

state,  to  be  levied,  assessed  and  collected  as  other  state  taxes,  and  when 
so  assessed  and  collected  to  be  paid  into  the  general  fund  to  reimburse 
said  fund  for  the  appropriation  made  by  this  act. 

Sec.  8.    The  provisions  of  this  act  shall  take  effect  and  be  in  force 
from  and  after  September  first,  nineteen  hundred  twelve. 

Approved  March  20,  1912. 


NEVADA. 

Laws  of  1911,  Chapteh  183. 
An  Act  determining  Certain  Employments  and  Industries  to  be 

ESPECIALLY    DANGEROUS,    ESTABLISHING    A    SySTEM    OF    COMPENSATION 

FOR  Accidents  to  Workmen  engaged  therein,  requiring  Em- 
ployers OR  Contractors  carrying  on  Such  Industries  to  pay 
Compensation,  entitling  injured  Workmen  or  their  Legal  Rep- 
resentatives TO  RECEIVE  Such  Compensation,  fixing  the  Amount 
of  Same  and  the  Manner  of  Payment,  fixing  the  Time  within 
which  Claims  for  Compensation  must  be  made,  prescribing  the 
Manner  and  Method  of  giving  Notice  to  Such  Owner  or  Con- 
tractor of  Such  Accident,  providing  for  the  Manner  of  set- 
tling Disputed  Claims  by  Arbitration,  providing  for  their  Final 
Determination  by  Courts  of  Justice,  and  granting  to  Courts 
of  Justice  Certain  Additional  Powers  in  Proceedings  under 
THIS  Act,  determining  what  Persons  shall  be  liable  under  this 
Act. 

The  People  of  the  State  of  Nevada,  represented  in  Senate  and  Assembly,  do 

enact  as  follows: 

Section  1.  If  in  any  employment  to  which  this  act  applies  personal 
injury  disabling  a  workman  from  his  r^ular  service  for  more  than  ten 
days,  or  death  by  accident,  arising  out  of  and  in  the  course  of  employ- 
ment is  caused  to  a  workman,  the  workman  so  injured,  or  in  case  of  death, 
the  member  of  his  family,  as  hereinafter  defined,  shall  be  entitled  to  receive 
from  his  employer,  and  the  said  employer  shall  be  liable  to  pay,  the  com- 
pensation provided  for  in  this  act;  provided,  that  recovery  hereunder 
shall  not  be  barred  where  such  employee  may  have  been  guilty  of  con- 
tributory negligence  where  such  contributory  neghgence  is  slight  and 
that  of  the  employer  is  gross  in  comparison,  but  in  which  event  the  com- 
pensation may  be  diminished  in  proportion  to  the  amount  of  negligence 
attributable  to  such  employee,  and  it  shall  be  conclusively  presumed  that 
such  employee  was  not  guilty  of  contributory  negligence  in  any  case 
where  the  violation  of  any  statute  enacted  for  the  safety  of  employees 
contributed  to  such  employee's  injury;  and  it  shall  not  be  a  defense: 
(1)  That  the  employee  either  expressly  or  impliedly  assumed  the  risk  of 
the  hazard  complained  of;  (2)  That  the  injury  or  death  was  caused  in 
whole  or  in  part  by  the  want  of  ordinary  or  reasonable  care  of  a  fellow- 


235 

servant.  No  contract,  rule  or  regulation  shall  exempt  the  employer  from 
any  of  the  provisions  of  the  preceding  section  of  this  act. 

Sec.  2.  "Employer"  includes  any  body  of  persons  corporate  or  incor- 
porate and  the  legal  personal  representative  of  a  deceased  employer. 
"Workman"  includes  every  person  who  is  engaged  in  an  employment  to 
which  this  act  appUes,  whether  by  way  of  manual  labor  or  otherwise,  and 
where  his  agreement  is  one  of  service  or  apprenticeship  or  otherwise,  and 
is  expressed  or  implied,  is  oral  or  in  writing.  Any  reference  to  a  workman 
who  has  been  injured  shall,  where  the  workman  is  dead,  include  a  refer- 
ence to  his  legal  personal  representative  or  to  his  dependents  or  other 
person  to  whom  compensation  is  payable.  "Dependents"  means  wife, 
father,  mother,  husband,  sister,  brother,  child  or  grandchild;  provided, 
that  they  were  wholly  or  partly  dependent  upon  the  earnings  of  the  work- 
man at  the  time  of  his  death. 

Sec.  3.  This  act  shall  apply  to  workmen  engaged  in  manual  or  me- 
chanical labor  in  the  following  employments  within  this  state,  each  of 
which  is  hereby  determined  to  be  especially  dangerous,  in  which  from  the 
nature,  condition  or  means  of  prosecution  of  the  work  therein,  extraor- 
dinary risks  to  the  life  and  limb  of  workmen  engaged  therein  are  inherent, 
necessarily  or  substantially  unavoidable,  and  to  each  of  which  employ- 
ments it  is  deemed  necessary  to  establish  a  new  system  of  compensation 
for  accidents  to  workmen. 

(a)  The  erection  or  demolition  of  any  bridge  or  building  in  which  there 
is,  or  in  which  the  plans  or  specifications  require  iron  or  steel  framework; 

(b)  The  operation  of  elevators,  elevating  machines  or  derricks  or  hoist- 
ing apparatus  used  within  or  on  the  outside  of  any  bridge  or  building  for 
the  conveying  of  material  in  connection  with  the  erection  or  demolition 
of  such  bridge  or  building; 

(c)  Work  on  scaffolds  of  any  kind  elevated  twenty  feet  or  more  above 
the  ground,  water  or  floor  beneath,  in  the  erection,  construction,  paint- 
ing, alteration  or  repair  of  buildings,  bridges  or  structures; 

(d)  Construction,  operation,  alteration,  or  repair  of  wires,  cables, 
switchboards  or  apparatus  charged  with  electric  currents; 

(e)  The  operation  on  railroads  of  locomotives,  engines,  trains,  motors 
or  cars  propelled  by  gravity,  steam,  electricity  or  other  mechanical  power, 
or  the  construction  or  repairs  of  railroad  tracks  and  roadbeds  over  which 
such  locomotives,  engines,  trains,  motors,  or  cars  are  operated; 

(f)  Construction,  operation,  alteration,  or  repairs  of  locomotives, 
engines,  trains,  motors  or  cars  in  or  about  the  shops,  round-houses,  or 
other  places,  where  the  same  is  done; 

(g)  Construction,  operation,  alteration  or  repairs  to  mills,  smelters  or 
mines,  including  every  shaft  or  pit  in  the  course  of  being  sunk,  and  every 
crosscut,  drift,  station,  winze,  level  or  inclined  planes  through  which 
workmen  pass  to  and  from  work,  and  all  works,  machinery,  tramways, 
ladders  or  passages,  both  below  ground  and  above  ground,  in  and  adjacent 
to  any  mine; 

(h)  All  work  necessitating  dangerous  proximity  to  gunpowder,  blast- 


236 

ing  powder,  dynamite  or  any  other  explosives,  where  the  same  are  used 
as  instrumentalities  of  the  industry; 

(i)  The  construction  of  tunnels. 

The  employers  to  whom  this  act  shall  apply  shall  be  any  person  or 
persons,  association,  partnership  or  corporation  carrying  on  any  such 
industry  as  aforesaid. 

Sec.  4.  Notice  of  accidents  must  be  given  to  the  employer  as  soon  as 
practicable  after  the  happening  thereof,  and  the  claim  for  compensation 
with  respect  to  such  accident  within  six  months  from  the  occurrence  of 
such  accident  causing  the  injury,  or  in  case  of  death,  within  six  months 
from  the  time  of  death;  provided,  always,  that  the  want  of,  or  any  defect 
or  inaccuracy  in,  such  notice  shall  not  be  a  bar  to  the  maintenance  of 
such  proceedings  if  it  is  found  in  the  proceedings  for  settling  the  claim 
that  the  employer  is  not  prejudiced  in  his  defense  by  the  want,  defect  or 
inaccuracy,  and  that  such  want,  defect  or  inaccuracy  was  occasioned  by 
mistake  or  other  reasonable  cause.  Notice  in  respect  of  an  injury  under 
this  act  shall  give  the  name  and  address  of  the  person  injured,  and  shall 
state  in  ordinary  language  the  cause  of  the  injury,  if  known,  the  date  at 
which  it  was  sustained,  and  shall  be  served  on  the  employer,  or,  if  there 
is  more  than  one  employer,  upon  one  of  such  employers.  The  notice  may 
be  served  by  delivering  the  same  to  or  at  the  residence  or  place  of  business 
of  the  person  upon  whom  it  is  to  be  served,  or  the  notice  may  also  be 
served  by  post,  by  a  registered  letter  addressed  to  the  person  on  whom  it 
is  to  be  served  at  his  last  known  place  of  residence  or  place  of  business,  and 
if  served  by  post  shall  be  deemed  to  have  been  served  at  the  time  when 
the  letter  containing  the  same  would  have  been  delivered  in  the  ordinary 
course  of  post,  and  in  proving  the  service  of  such  notice  it  shall  be  suffi- 
cient to  prove  that  the  notice  was  properly  addressed  and  registered. 
Where  the  employer  is  a  body  of  persons,  natural  or  artificial,  the  notice 
may  also  be  served  by  delivering  the  same  at,  or  by  sending  it  by  post 
in  a  registered  letter  addressed  to  the  employer  at  the  office,  or,  if  there 
be  more  than  one  office,  any  one  of  the  offices  of  such  body. 

Sec.  5.  The  amount  of  compensation  in  case  death  results  from  in- 
jury, or  for  death  accruing  within  five  years  as  a  result  of  injury,  shall  be: 

(a)  If  the  workman  leave  any  person  or  persons  who  at  the  time  of 
the  accident  were  wholly  dependent  upon  his  earnings,  a  sum  equal  to 
his  earnings  in  the  employment  of  the  same  employer  during  the  three 
years  next  preceding  the  injury,  or  the  sum  of  two  thousand  dollars, 
whichever  of  these  sums  is  the  greater,  but  not  exceeding  in  any  case  three 
thousand  dollars;  provided,  that  the  total  sura  of  any  weekly  payments 
made  under  this  act  shall  be  deducted  from  such  sum;  and  if  the  period 
of  the  workman's  employment  by  the  same  employer  has  been  less  than 
the  said  three  years,  then  the  amount  of  his  earnings  during  the  said 
three  years  shall  be  deemed  to  be  nine  hundred  and  thirty-six  times  his 
average  daily  earnings  during  the  period  of  his  actual  employment  under 
the  same  employer; 

(b)  If  the  workman  leave  only  person  or  persons  who  at  the  time  of 


237 

the  accident  were  partly  dependent  upon  his  earnings,  a  sum  equal  to 
50  per  cent  of  the  amount  payable  under  the  foregoing  provisions  of  this 
section ; 

(c)  If  the  workman  leave  no  person  at  the  time  of  the  accident  who  was 
dependent  upon  his  earnings,  the  reasonable  expenses  of  his  medical  at- 
tendance and  burial,  not  exceeding  in  all  three  hundred  dollars. 

Whatever  sum  is  payable  under  this  section  in  case  of  death  of  the 
injured  workman  shall  be  paid  to  his  legal  representatives  for  the  benefit 
of  such  dependents,  and  if  he  leaves  no  such  dependents,  then  to  the 
public  administrator,  for  the  benefit  of  the  person  or  persons  to  whom  the 
expenses  of  medical  attendance  and  burial  are  due. 

Sec.  6.  The  amount  of  compensation  in  case  of  total  or  partial  dis- 
ability resulting  from  injury  shall  be: 

(a)  A  weekly  payment  during  the  disability,  beginning  within  ten  days 
after  the  injury,  60  per  cent  of  his  average  weekly  earnings  in  such  em- 
ployment during  the  previous  twelve  months  if  he  has  been  so  long  em- 
ployed, but  if  not,  then  for  any  less  period  during  which  he  has  been  in 
the  employment  of  the  same  employer,  so  long  as  there  is  complete  dis- 
ability; and  that  proportion  of  the  said  percentage  which  the  depleted 
earning  capacity  for  that  service  bears  to  the  total  disability  when  the 
injury  is  only  partial,  but  in  no  event  shall  the  total  of  all  payments 
under  this  act  exceed  the  sum  of  three  thousand  dollars; 

(b)  In  addition  to  the  foregoing  payments,  if  the  injured  person  lose 
both  feet  or  both  hands,  or  one  foot  and  one  hand,  or  both  eyes  or  one 
eye  and  one  foot  or  one  hand,  he  shall  receive,  during  a  full  period  of 
five  years,  40  per  cent  of  his  average  weekly  earnings,  or  if  he  lose  one 
foot,  one  hand  or  one  eye,  the  additional  compensation  therefor  shall  be 
15  per  cent  of  his  average  weekly  earnings,  the  amount  of  such  earnings 
to  be  computed  in  the  same  manner  as  the  foregoing  60  per  cent;  pro- 
vided, that  in  no  case  shall  all  the  payments  received  herein  exceed  in 
any  month  the  whole  wages  earned  when  the  injury  occurs,  nor  shall 
the  added  percentages  continue  longer  than  to  make  all  payments  aggre- 
gate three  thousand  dollars. 

Sec.  7.  Any  workman  entitled  to  receive  weekly  payments  under  this 
act  is  required,  if  requested  by  the  employer,  to  submit  himself  for  ex- 
amination by  a  duly  qualified  medical  practitioner  or  surgeon  provided 
and  paid  for  by  the  employer,  at  a  time  and  place  reasonably  convenient 
for  the  workman,  within  three  weeks  after  the  injury,  and  thereafter  at 
intervals  not  oftener  than  once  in  six  weeks.  A  copy  of  the  report  of  the 
examining  physician  shall  be  furnished  to  the  workman.  If  a  dispute 
then  exists  as  to  the  workman's  condition  or  amount  of  weekly  compensa- 
tion such  dispute  shall  be  determined  by  arbitration  under  this  act,  or 
by  judicial*  procedure  as  hereinafter  provided;  'provided,  also,  that  any 
and  all  disputes  arising  under  this  act  may  be  first  submitted  to  a  board 
of  arbitration,  and  in  case  of  failure  to  settle  it,  resort  may  be  had  to 
courts  of  justice. 

Sec.  8.    Arbitration  proceedings  shall  be  as  follows:  The  employer  and 


238 

the  workman  may  each  choose  one  arbitrator,  the  two  arbitrators  thus 
chosen  shall  choose  a  third,  and  the  three  arbitrators  shall  hear  the  facts 
of  the  dispute  within  three  months  after  having  been  chosen,  and  within 
two  weeks  thereafter,  render  a  decision,  which,  if  unanimous,  shall  be 
final  and  binding  on  both  parties. 

Sec.  9.  On  failure  of  the  board  of  arbitration  to  reach  an  adjustment 
of  the  dispute  above  referred  to,  either  party  may  apply  to  a  court  of 
competent  jurisdiction,  and  have  an  adjudication  as  in  any  other  contro- 
versy. And  the  findings  and  judgment  of  the  court  shall  be  conclusive 
on  all  parties  concerned.  Said  courts  may  compel  the  attendance  of 
witnesses  and  the  production  of  evidence,  as  in  all  other  cases  provided 
for  by  law,  and  the  judgment  of  said  court  may  continue  and  diminish 
or  increase  the  weekly  payments,  subject  to  the  maximum  provided  in 
this  act.  The  prevailing  party  in  any  action,  brought  under  the  provi- 
sions of  this  act,  shall  be  entitled  to  his  costs  of  suit  and  reasonable  attor- 
ney's fees;  provided,  that  nothing  in  this  act  shall  operate  to  defeat  the 
constitutional  right  of  appeal. 

Sec.  10.  If  any  employer  who  shall  be  the  principal,  enters  into  a 
contract  with  an  independent  contractor  to  do  part  of  such  employer's 
work,  or  if  such  contractor  enters  into  a  contract  with  a  subcontractor  to 
do  all  or  any  part  of  the  work  comprised  in  such  contractor's  contract 
with  the  employer,  the  said  principal  shall  be  liable  to  pay  to  any  work- 
man employed  in  the  execution  of  the  work,  any  compensation  under 
this  act,  which  he  would  have  been  liable  to  pay  if  that  workman  has 
been  immediately  employed  by  him;  and  where  compensation  is  claimed 
from  the  principal,  then  reference  to  the  principal  shall  be  substituted 
for  reference  to  the  employer,  except  the  amount  of  compensation  shall 
be  calculated  with  reference  to  the  earnings  of  the  workman  under  the 
contractor  or  employer  by  whom  he  is  immediately  employed.  Where 
such  principal  is  liable  to  pay  compensation  he  shall  be  entitled  to  be 
indemnified  by  any  person  who  would  have  been  liable  to  pay  compensa- 
tion to  the  workman  independently  of  this  section.  Nothing  in  this  sec- 
tion shall  be  construed  as  preventing  a  workman  from  recovering  com- 
pensation under  this  act,  from  the  contractor  or  subcontractor,  instead 
of  the  principal;  nor  shall  this  section  apply  in  any  case  where  the  acci- 
dent shall  occur  elsewhere  than  on  or  in  or  about  the  premises  on  which 
the  principal  has  undertaken  to  execute  the  work  or  which  are  otherwise 
under  his  control  or  management. 

Sec.  11.  Nothing  in  this  act  contained  shall  be  held  or  deemed  to 
require  any  workman  or  his  personal  representatives  to  proceed  under 
its  terms  and  provisions  for  the  recovery  of  compensation  of  damages 
for  death  or  accidental  injury.  But  if  the  workman  or  his  personal  rep- 
resentatives shall  so  elect,  he  or  they  may  disregard  the  provisions  of 
this  act  and  may  pursue  any  other  remedy  at  law  for  the  recovery  of 
such  compensation  of  damages  for  or  on  account  of  such  death  or  injury. 
The  right  of  election  or  choice  of  remedies  shall  be  exercised  solely  by 
such  workman  or  liis  renrosentatives. 


239 

Sec.  12.  A  claim  for  compensation  for  the  injury  or  death  of  any 
employee  or  any  reward  or  judgment  entered  thereon  shall  be  entitled 
to  a  preference  over  the  other  debts  of  the  employer  if  and  to  the  same 
extent  as  the  wages  of  such  employee  shall  be  so  preferred,  but  this  sec- 
tion shall  not  impair  the  lien  of  any  judgment  entered  upon  any  award. 

Sec.  13.  The  making  of  a  lawful  claim  against  an  employer  for  com- 
pensation under  this  act  for  the  injury  or  death  of  his  employee  shall 
operate  as  an  assignment  of  any  assignable  cause  of  action  in  tort  which 
the  employee  or  his  personal  representative  may  have  against  any  other 
party  for  such  injury  or  death,  and  such  employer  may  enforce  in  his 
own  name  the  liability  of  such  other  party. 

Sec.  14.  Nothing  in  this  act  contained  shall  be  construed  as  impair- 
ing the  right  of  parties  interested  after  the  injury  or  death  of  an  employee 
to  compromise  or  settle  upon  such  terms  as  they  may  agree  upon  any 
liability  which  may  be  claimed  to  exist  under  this  act  on  account  of  such 
injury  or  death,  nor  as  conferring  upon  the  dependents  of  any  injured 
employee  any  interest  which  he  may  not  divert  by  such  settlement  or  for 
which  he  or  his  estate  shall  in  the  event  of  such  settlement  by  him  be 
accountable  to  such  dependents  or  any  of  them. 

Sec.  15.    This  act  shall  take  effect  July  1,  1911. 

Approved  March  24,  1911. 


NEW  HAMPSHIRE. 

Laws  of  1911.  Chapter  163. 

An  Act  in  Relation  to  Employers'  Liability  and  Workmen's  Com- 
pensation. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  in  General  Court 

convened: 
Section  1.  This  act  shall  apply  only  to  workmen  engaged  in  manual 
or  mechanical  labor  in  the  employments  described  in  this  section,  which, 
from  the  nature,  conditions  or  means  of  prosecution  of  such  work,  are 
dangerous  to  the  life  and  limb  of  workmen  engaged  therein,  because  in 
them  the  risks  of  employment  and  the  danger  of  injury  caused  by  fellow 
servants  are  great  and  difficult  to  avoid,  (a)  The  operation  on  steam  or 
electric  railroads  of  locomotives,  engines,  trains  or  cars,  or  the  construc- 
tion, alteration,  maintenance  or  repair  of  steam  railroad  tracks  or  road 
beds  over  which  such  locomotives,  engines,  trains  or  cars  are  or  are  to  be 
operated.  (6)  Work  in  any  shop,  mill,  factory  or  other  place  on,  in  con- 
nection with  or  in  proximity  to  any  hoisting  apparatus,  or  any  machinery 
propelled  or  operated  by  steam  or  other  mechanical  power  in  which  shop, 
mill,  factory  or  other  place  five  or  more  persons  are  engaged  in  manual 
or  mechanical  labor,  (c)  The  construction,  operation,  alteration  or  re- 
pair of  wires  or  lines  of  wires,  cables,  switch  boards  or  apparatus,  charged 
with  electric  currents,     {d)  All  work  necessitating  dangerous  proximity 


240 

to  gunpowder,  blasting  powder,  dynamite  or  any  other  explosives,  where 
the  same  are  used  as  instrumentalities  of  the  industry,  or  to  any  steam 
boiler  owned  or  operated  by  he  employer,  provided  injury  is  occasioned 
by  the  explosion  of  any  such  boiler  or  explosive,  (e)  Work  in  or  about 
any  quarry,  mine  or  foundry.  As  to  each  of  said  employments  it  is 
deemed  necessary  to  establish  a  new  system  of  compensation  for  acci- 
dents to  workmen. 

Sect.  2.  If,  in  the  course  of  any  of  the  employments  above  described, 
personal  injury  by  accident  arising  out  of  and  in  the  course  of  the  employ- 
ment is  caused  to  any  workman  employed  therein,  in  whole  or  in  part, 
by  failure  of  the  employer  to  comply  with  any  statute,  or  with  any  order 
made  under  authority  of  law,  or  by  the  negligence  of  the  employer  or 
any  of  his  or  its  officers,  agents  or  employees,  or  by  reason  of  any  defect 
or  insufficiency  due  to  his,  its  or  their  negligence  in  the  condition  of  his 
or  its  plant,  ways,  works,  machinery,  cars,  engines,  equipment,  or  appli- 
ances, then  such  employer  shall  be  liable  to  such  workmen  for  all  dam- 
ages occasioned  to  him,  or,  in  case  of  his  death,  to  his  personal  repre- 
sentatives for  all  damages  now  recoverable  under  the  provisions  of  chapter 
191  of  the  Public  Statutes.  The  workman  shall  not  be  held  to  have 
assumed  the  risk  of  any  injury  due  to  any  cause  specified  in  this  section; 
but  there  shall  be  no  liability  under  this  section  for  any  injury  to  which 
it  shall  be  made  to  appear  by  a  preponderance  of  evidence  that  the  negli- 
gence of  the  plaintiff  contributed.  The  damages  provided  for  by  this 
section  shall  be  recovered  in  an  action  on  the  case  for  negligence. 

Sect.  3.  The  provisions  of  section  2  of  this  act  shall  not  apply  to  any 
employer  who  shall  have  filed  with  the  commissioner  of  labor  his  declara- 
tion in  writing  that  he  accepts  the  provisions  of  this  act  as  contained  in 
the  succeeding  sections,  and  shall  have  satisfied  the  commissioner  of 
labor  of  his  financial  ability  to  comply  with  its  provisions,  or  shall  have 
filed  with  the  commissioner  of  labor  a  bond,  in  such  form  and  amount  as 
the  commissioner  may  prescribe,  conditioned  on  the  discharge  by  such 
employer  of  all  liabiUty  incurred  under  this  act.  Such  bond  shall  be 
enforced  by  the  commissioner  of  labor  for  the  benefit  of  all  persons  to 
whom  such  employer  may  become  liable  under  this  act  in  the  same  man- 
ner as  probate  bonds  are  enforced.  The  commissioner  may,  from  time 
to  time,  order  the  filing  of  new  bonds,  when  in  his,  judgment  such  bonds 
are  necessary;  and  after  thirty  days  from  the  communication  of  such 
order  to  any  employer,  such  employer  shall  be  subject  to  the  provisions 
of  section  2  of  this  act  until  such  order  has  been  complied  with.  The 
employer  may  at  any  time  revoke  his  acceptance  of  the  provisions  of 
the  succeeding  sections  of  this  act  by  filing  with  the  commissioner  of 
labor  a  declaration  to  that  effect,  and  by  posting  copies  of  such  declara- 
tion in  conspicuous  places  about  the  place  where  his  wQrkmen  are  em- 
ployed. Any  person  aggrieved  by  any  decision  of  the  commissioner  under 
this  section  may  apply  by  petition  to  any  justice  of  the  superior  court 
for  a  review  of  such  decision  and  said  justice  on  notice  and  hearing  shall 


241 

make  such  order  affirming,  reversing  or  modifying  such  decision  as  jus- 
tice may  require;  and  such  order  shall  be  final.  Such  employer  shall  be 
liable  to  all  workmen  engaged  in  any  of  the  employments  specified  in 
section  1,  for  any  injury  arising  out  of  and  in  the  course  of  their  employ- 
ment, in  the  manner  provided  in  the  following  sections  of  this  act.  Pro- 
vided, that  the  employer  shall  not  be  liable  in  respect  of  any  injury  which 
does  not  disable  the  workman  for  a  period  of  at  least  two  weeks  from  earn- 
ing full  wages  at  the  work  at  which  he  was  employed,  and,  provided,  that 
the  employer  shall  not  be  liable  in  respect  of  any  injury  to  the  workman 
which  is  caused  in  whole  or  in  part  by  the  intoxication,  violation  of  law, 
or  serious  or  wilful  misconduct  of  the  workman.  Provided,  further,  that 
the  employer  shall  at  the  election  of  the  workman,  or  his  personal  repre- 
sentative, be  liable  under  the  provisions  of  section  2  of  this  act  for  all 
injury  caused  in  whole  or  in  part  by  wilful  failure  of  the  employer  to 
comply  with  any  statute,  or  with  any  order  made  under  authority  of  law. 

Sect.  4.  The  right  of  action  for  damages  caused  by  any  such  injury, 
at  common  law,  or  under  any  statute  in  force  on  January  one,  nineteen 
hundred  and  eleven,  shall  not  be  affected  by  this  act,  but  in  case  the 
injured  workman,  or  in  event  of  his  death  his  executor  or  administrator, 
shall  avail  himself  of  this  act,  either  by  accepting  any  compensation  here- 
under, by  giving  the  notice  hereinafter  prescribed,  or  by  beginning  pro- 
ceedings therefor  in  any  manner  on  account  of  any  such  injury,  he  shall 
be  barred  from  recovery  in  every  action  at  common  law  or  under  any 
other  statute  on  account  of  the  same  injury.  In  case  after  such  injury 
the  workman,  or  in  the  event  of  his  death  his  executor  or  administrator, 
shall  commence  any  action  at  common  law  or  under  any  statute  other 
than  this  act  against  the  employer  therefor,  he  shall  be  barred  from  all 
benefit  of  this  act  in  regard  thereto. 

Sect.  5.  No  proceedings  for  compensation  under  this  act  shall  be 
maintained  unless  notice  of  the  accident  as  hereinafter  provided  has  been 
given  to  the  employer  as  soon  as  practicable  after  the  happening  thereof 
and  before  the  workman  has  voluntarily  left  the  employment  in  which 
he  was  injured  and  during  such  disability,  and  unless  claim  for  compensa- 
tion has  been  made  within  six  months  from  the  occurrence  of  the  acci- 
dent, or  in  case  of  the  death  of  the  workman,  or  in  the  event  of  his  physi- 
cal or  mental  incapacity,  within  six  months  after  such  death  or  the  removal 
of  such  physical  or  mental  incapacity,  or  in  the  event  that  weekly  pay- 
ments have  been  made  under  this  article,  within  six  months  after  such 
payments  have  ceased,  but  no  want  or  defect  or  inaccuracy  of  a  notice 
shall  be  a  bar  to  the  maintenance  of  proceedings  unless  the  employer 
proves  that  he  is  prejudiced  by  such  want,  defect  or  inaccuracy.  Notice 
of  the  accident  shall  apprise  the  employer  of  the  claim  for  compensation 
under  this  article,  and  shall  state  the  name  and  address  of  the  workman 
injured,  and  the  date  and  place  of  the  accident.  The  notice  may  be 
served  personally  or  by  sending  it  by  mail  in  a  registeied  letter  addressed 
to  the  employer  at  his  last  known  residence  or  place  of  business. 


242 

Sect.  6.  (1)  The  amount  of  compensation  shall  be,  in  case  death 
results  from  injury:  (a)  If  the  workman  leaves  any  widow,  children  or 
parents,  resident  of  this  state,  at  the  time  of  his  death,  then  wholly  de- 
pendent on  his  earnings,  a  sum  to  compensate  them  for  loss,  equal  to 
one  hundred  and  fifty  times  the  average  weekly  earnings  of  such  workman 
when  at  work  on  full  time  during  the  preceding  year  during  which  he 
shall  have  been  in  the  employ  of  t^e  same  employer,  or  if  he  shall  have 
been  in  the  employment  of  the  same  employer  for  less  than  a  year  then 
one  hundred  and  fifty  times  his  average  weekly  earnings  on  full  time  for 
such  less  period;  but  in  no  event  shall  such  sum  exceed  three  thousand 
dollars.  Any  weekly  payments  made  under  this  act  shall  be  deducted 
from  the  sum  so  fixed.  (6)  If  such  widow,  children  or  parents  at  the 
time  of  his  death  arc  in  part  only  dependent  upon  his  earnings,  such  pro- 
portion of  the  benefits  provided  for  those  wholly  dependent  as  the  amount 
of  the  wage  contributed  by  the  deceased  to  such  partial  dependents  at 
the  time  of  injury  bore  to  the  total  wage  of  the  deceased.  (c)  If  he  leaves 
no  such  dependents,  the  reasonable  expenses  of  his  medical  attendance 
and  burial,  not  exceeding  one  hundred  dollars.  Whatever  sum  may  be 
determined  to  be  payable  under  this  act  in  case  of  death  of  the  injured 
workman  shall  be  paid  to  his  legal  representative  for  the  benefit  of  such 
dependents,  or  if  he  leaves  no  such  dependents,  for  the  benefit  of  the 
persons  to  whom  the  expenses  of  medical  attendance  and  burial  are  due. 

(2)  Where  total  or  partial  incapacity  for  work  at  any  gainful  employ- 
ment results  to  the  workman  from  the  injury,  a  weekly  payment  com- 
mencing at  the  end  of  the  second  week  after  the  injury  and  continuing 
during  such  incapacity,  subject  as  herein  provided,  not  exceeding  fifty 
per  centum  of  his  average  weekly  earnings  when  at  work  on  full  time  dur- 
ing the  preceding  year  during  which  he  shall  have  been  in  the  employ- 
ment of  the  same  employer,  or  if  he  shall  have  been  in  the  employment 
of  the  same  employer  for  less  than  a  year,  then  a  weekly  payment  of  not 
exceeding  one  half  the  average  weekly  earnings  on  full  time  for  such  less 
period.  In  fixing  the  amount  of  the  weekly  payment,  regard  shall  be 
had  to  the  difference  between  the  amount  of  the  average  earnings  of  the 
workman  before  the  accident  and  the  average  amount  he  is  able  to  earn 
thereafter  as  wages  in  the  same  employment  or  otherwise.  In  fixing  the 
amount  of  the  weekly  payment,  regard  shall  be  had  to  any  payment, 
allowance  or  benefit  which  the  workman  may  have  received  from  the 
employer  during  the  period  of  his  incapacity,  and  in  the  case  of  partial 
incapacity  the  weekly  payment  shall  in  no  case  exceed  the  difference 
between  the  amount  of  the  average  weekly  earnings  of  the  workman 
before  the  accident  and  the  average  weekly  amount  which  he  is  earning 
or  is  able  to  earn  in  the  same  employment  or  otherwise  after  the  accident, 
but  shall  amount  to  one  half  of  such  difference.  In  no  event  shall  any 
compensation  paid  under  this  act  exceed  the  damage  suffered,  nor  shall 
any  weekly  payment  payable  under  this  act  in  any  event  exceed  ten  dol- 
lars a  week  or  extend  over  more  than  three  hundred  weeks  from  the  date 


243 

of  the  accident.  Such  payment  shall  continue  for  such  period  of  three 
hundred  weeks  provided  total  or  partial  disability  continue  during  such 
period.  No  such  payment  shall  be  due  or  payable  for  any  time  prior  to 
the  giving  of  the  notice  required  by  section  five  of  this  act. 

Sect.  7.  Any  workman  entitled  to  receive  weekly  payments  under 
this  act  is  required,  if  requested  by  the  employer,  to  submit  himself  for 
examination  by  a  duly  qualified  medical  practitioner  or  surgeon  pro- 
vided and  paid  for  by  the  employer,  at  a  time  and  place  reasonably  con- 
venient for  the  workman,  within  two  weeks  after  the  injury,  and 
thereafter  at  intervals  not  oftener  than  once  in  a  week.  If  the  work- 
man refuses  to  submit  to  such  examination,  or  obstructs  the  same,  his 
right  to  weekly  payments  shall  be  suspended  until  such  examination  has 
taken  place,  and  no  compensation  shall  be  payable  during  or  for  account 
of  such  period. 

Sect.  8.  In  case  an  injured  workman  shall  be  mentally  incompetent 
at  the  time  when  any  right  or  privilege  accrues  to  him  under  this  act,  the 
guardian  of  the  incompetent  appointed  pursuant  to  law  may,  on  behalf 
of  such  incompetent,  claim  and  exercise  any  such  right  or  privilege  with 
the  same  force  and  effect  as  if  the  workman  himself  had  been  competent 
and  had  claimed  or  exercised  any  such  right  or  privilege,  and  no  limitation 
of  time  in  this  act  provided  for  shall  run  so  long  as  said  incompetent  work- 
man has  no  guardian. 

Sect.  9.  Any  question  as  to  compensation  which  may  arise  under 
this  act  shall  be  determined  by  agreement  or  by  an  action  at  equity  as 
hereinafter  provided.  In  case  the  employer  fail  to  make  compensation 
as  herein  provided,  the  injured  workman,  or  his  guardian,  if  such  be 
appointed,  or  his  executor  or  administrator,  may  then  bring  an  acti'on 
to  recover  compensation  under  this  act  in  any  court  having  jurisdiction 
of  an  action  for  recovery  of  damages  for  negligence  for  the  same  injury 
between  the  same  parties.  Such  action  shall  be  by  petition  in  equity, 
which  may  be  made  returnable  at  the  appropriate  term  of  the  superior 
court  or  may  be  filed  in  the  office  of  the  clerk  of  the  superior  court  and 
presented  in  term  time  or  vacation  to  any  justice  of  said  court,  who  on 
reasonable  notice  shall  hear  the  parties  and  render  judgment  thereon. 
The  judgment  in  such  action  if  in  favor  of  the  plaintiff  shall  be  for  a 
lump  sum  equal  to  the  amount  of  payments  then  due  and  prospectively 
due  under  this  act.  In  such  action  by  an  executor  or  administrator  the 
judgment  may  provide  the  proportions  of  the  award  or  the  costs  to  be 
distributed  to  or  between  the  several  dependents.  If  such  determina- 
tion is  not  made  it  shall  be  determined  by  the  probate  court  in  which  such 
executor  or  administrator  is  appointed,  in  accordance  with  this  act,  on 
petition  of  any  party  interested,  on  such  notice  as  such  court  may  direct. 
Any  employer  who  has  declared  his  intention  to  act  under  the  compen- 
sation features  of  this  act  shall  also  have  the  right  to  apply  by  similar 
proceedings  to  the  superior  court  or  to  any  justice  thereof  for  a  determi- 
nation of  the  amount  of  the  weekly  payments  to  be  paid  the  injured  work- 


244 

man,  or  of  a  lump  sum  to  be  paid  the  injured  workman  in  lieu  of  such 
weekly  payments;  and  either  such  employer  or  workman  may  apply  to 
said  superior  court  or  to  any  justice  thereof  in  similar  proceeding  for  the 
determination  of  any  other  question  that  may  arise  under  the  compensa- 
tion feature  of  this  act;  and  said  court  or  justice,  after  reasonable  notice 
and  hearing,  may  make  such  order  as  to  the  matter  in  dispute  and  tax- 
able costs  as  justice  may  require. 

Sect.  10.  Any  person  entitled  to  weekly  payments  under  this  act 
against  any  employer  shall  have  the  same  preferential  claim  therefor 
against  the  assets  of  the  employer  as  is  allowed  by  law  for  a  claim  by 
such  person  against  such  employer  for  unpaid  wages  or  personal  services. 
Weekly  payments  due  under  this  act  shall  not  be  assignable  or  subject  to 
levy,  execution,  attachment  or  satisfaction  of  debts.  Any  right  to  re- 
ceive compensation  under  this  act  shall  be  extinguished  by  the  death  of 
the  person  entitled  thereto. 

Sect.  11.  No  claim  of  any  attorney-at-law  for  any  contingent  inter- 
est in  any  recovery  under  this  act  for  services  in  securing  such  recovery 
or  for  disbursements  shall  be  an  enforceable  lien  on  such  recovery,  unless 
the  account  of  the  same  be  approved  in  writing  by  a  justice  of  the  superior 
court,  or,  in  case  the  same  be  tried  in  any  court,  by  the  justice  presiding 
at  such  trial. 

Sect.  12.  Every  employer  subject  to  the  provisions  of  this  act  shall 
from  time  to  time  make  to  the  commissioner  of  labor  such  returns  as  to 
its  operation  as  said  commissioner  may  require  upon  blanks  to  be  fur- 
nished by  said  commissioner.  Any  employer  failing  to  make  such  re- 
turns when  required  by  said  commissioner  shall,  until  such  returns  are 
made,  be  subject  to  the  provisions  of  section  2  of  this  act. 

Sect.  13.  This  act  shall  take  effect  January  first,  nineteen  hundred 
and  twelve.  Approved  April  15,  1911. 


NEW  JERSEY. 

Laws  of  1911,  Chapter  95. 

An  Act  prescribing  the  Liability  of  an  Employer  to  make  Com- 
pensation FOR  Injuries  received  by  an  Employe  in  the  Course 
OF  Employment,  establishing  an  Elective  Schedule  of  Com- 
pensation, and  regulating  Procedure  for  the  Determination 
OF  Liability  and  Compensation  thereunder. 

Be  it  enacted  by  the  Senate  and  General  Assembly  of  the  State  of  New  Jersey: 

section  I.    compensation  by  action  at  law. 
1.  When  personal  injury  is  caused  to  an  employe  by  accident  arising 
out  of  and  in  the  course  of  his  employment,  of  which  the  actual  or  law- 
fully imputed  neghgence  of  the  employer  is  the  natural  and  proximate 
cause,  he  shall  receive  compensation  therefor  from  his  employer,  provided 


245 

the  employe  was  himself  not  willfully  negligent  at  the  time  of  receiving 
such  injury,  and  the  question  of  whether  the  employe  was  willfully  negli- 
gent shall  be  one  of  fact  to  be  submitted  to  the  jury,  subject  to  the  usual 
superintending  powers  of  a  court  to  set  aside  a  verdict  rendered  contrary 
to  the  evidence. 

2.  The  right  to  compensation  as  provided  by  section  I  of  this  act  shall 
not  be  defeated  upon  the  ground  that  the  injury  was  caused  in  any  degree 
by  the  negligence  of  a  fellow  employe;  or  that  the  injured  employe  as- 
sumed the  risks  inherent  in  or  incidental  to  or  arising  out  of  his  employ- 
ment or  arising  from  the  failure  of  the  employer  to  provide  and  maintain 
safe  premises  and  suitable  apphances;  which  said  grounds  of  defense  are 
hereby  abolished. 

3.  If  an  employer  enters  into  a  contract,  written  or  verbal,  with  an 
independent  contractor  to  do  part  of  such  employer's  work,  or  if  such 
contractor  enters  into  a  contract,  written  or  verbal,  with  a  subcontractor 
to  do  all  or  any  part  of  such  work  comprised  in  such  contractor's  contract 
with  the  employer,  such  contract  or  subcontract  shall  not  bar  the  liability 
of  the  employer  under  this  act  for  injury  caused  to  an  employe  of  such 
contractor  or  subcontractor  by  any  defect  in  the  condition  of  the  ways, 
works,  machinery  or  plant  if  the  defect  arose  or  had  not  been  discovered 
and  remedied  through  the  negligence  of  the  employer  or  some  one  entrusted 
by  him  with  the  duty  of  seeing  that  they  were  in  proper  condition.  This 
paragraph  shall  apply  only  to  actions  arising  under  section  one. 

4.  The  provisions  of  paragraphs  one,  two  and  three  shall  apply  to  any 
claim  for  the  death  of  an  employe  arising  under  an  act  entitled  "An  act 
to  provide  for  the  recovery  of  damages  in  cases  where  the  death  of  a 
person  is  caused  by  wrongful  act,  neglect  or  default,"  approved  March 
third,  eighteen  hundred  and  forty-eight,  and  the  amendments  thereof 
and  supplements  thereto. 

.5.  In  all  actions  at  law  brought  pursuant  to  section  I  of  this  act,  the 
burden  of  proof  to  establish  willful  negligence  in  the  injured  employe 
shall  be  upon  the  defendant. 

6.  No  claim  for  legal  services  or  disbursements  pertaining  to  any  de- 
mand made  or  suit  brought  under  the  provisions  of  this  act  shall  be  an 
enforceable  lien  against  the  amount  paid  as  compensation,  unless  the 
same  be  approved  in  writing  by  the  judge  or  justice  presiding  at  the  trial, 
or  in  case  of  settlement  without  trial,  by  the  judge  of  the  circuit  court  of 
the  district  in  which  such  issue  arose;  provided,  that  if  notice  in  writing 
be  given  the  defendant  of  such  claim  for  legal  services  or  disbursements, 
the  same  shall  be  a  lien  against  the  amount  paid  as  compensation,  subject 
to  determination  of  the  amount  and  approval  hereinbefore  provided. 

SECTION   II.      ELECTIVE    COMPENSATION. 

7.  When  employer  and  employe  shall  by  agreement,  either  express  or 
implied,  as  hereinafter  provided,  accept  the  provisions'  of  section  II  of 
this  act,  compensation  for  personal  injuries  to  or  for  the  death  of  such 


246 

employe  by  accident  arising  out  of  and  in  the  course  of  his  employment 
shall  be  made  by  the  employer  without  regard  to  the  negligence  of  the 
employer,  according  to  the  schedule  contained  in  paragraph  eleven,  in 
all  cases  except  when  the  injury  or  death  is  intentionally  self-inflicted,  or 
when  intoxication  is  the  natural  and  proximate  cause  of  injury,  and  the 
burden  of  proof  of  such  fact  shall  be  upon  the  employer. 

8.  Such  agreement  shall  be  a  surrender  by  the  parties  thereto  of  their 
rights  to  any  other  method,  form  or  amount  of  compensation  or  deter- 
mination thereof  than  as  provided  in  section  II  of  this  act,  and  an  accept- 
ance of  all  the  provisions  of  section  II  of  this  act,  and  shall  bind  the  em- 
ploye himself  and  for  compensation  for  his  death  shall  bind  his  personal 
representatives,  his  widow  and  next  of  kin,  as  well  as  the  employer,  and 
those  conducting  his  business  during  bankruptcy  or  insolvency. 

9.  Every  contract  of  hiring  made  subsequent  to  the  time  provided  for 
this  act  to  take  effect  shall  be  presumed  to  have  been  made  with  reference 
to  the  provisions  of  section  II  of  this  act,  and  unless  there  be  as  a  part  of 
such  contract  an  express  statement  in  writing,  prior  to  any  accident, 
either  in  the  contract  itself  or  by  written  notice  from  either  party  to  the 
other,  that  the  provisions  of  section  II  of  this  act  are  not  intended  to 
apply,  then  it  shall  be  presumed  that  the  parties  have  accepted  the  pro- 
visions of  section  II  of  this  act  and  have  agreed  to  be  bound  thereby.  In 
the  employment  of  minors,  section  II  shall  be  presumed  to  apply  unless 
the  notice  be  given  by  or  to  the  parent  or  guardian  of  the  minor. 

10.  The  contract  for  the  operation  of  the  provisions  of  section  II  of 
this  act  may  be  terminated  by  either  party  upon  sixty  days'  notice  in 
writing  prior  to  any  accident. 

11.  Following  is  the  schedule  of  compensation: 

(a)  For  injury  producing  temporary  disability,  fifty  per  centum  of  the 
wages  received  at  the  time  of  injury,  subject  to  a  maximum  compensation 
of  ten  dollars  per  week  and  a  minimum  of  five  dollars  per  week;  provided, 
that  if  at  the  time  of  injury  the  employe  receives  wages  of  less  than  five 
dollars  per  week,  then  he  shall  receive  the  full  amount  of  such  wages  per 
week.  This  compensation  shall  be  paid  during  the  period  of  such  dis- 
ability, not,  however,  beyond  three  hundred  weeks. 

(b)  For  disability  total  in  character  and  permanent  in  quality,  fifty 
per  centum  of  the  wages  received  at  the  time  of  injury,  subject  to  a  maxi- 
mum compensation  of  ten  dollars  per  week  and  a  minimimi  of  five  dollars 
per  week;  provided,  that  if  at  the  time  of  injury  the  employe  receives 
wages  of  less  than  five  dollars  per  week,  then  he  shall  receive  the  full 
amount  of  wages  per  week.  This  compensation  shall  be  paid  during  the 
period  of  such  disability,  not,  however,  beyond  four  hundred  weeks. 

(c)  For  disability  partial  in  character  but  permanent  in  quality,  the 
compensation  shall  be  based  upon  the  extent  of  such  disability.  In  cases 
included  by  the  following  schedule  the  compensation  shall  be  that  named 
in  the  schedule,  to  wit: 

For  the  loss  of  a  thumb,  fifty  per  centum  of  daily  wages  during  sixty 

XffffAra 


247 

For  the  loss  of  a  first  finger,  commonly  called  index  finger,  fifty  per 
centum  of  daily  wages  during  thirty-five  weeks. 

For  the  loss  of  a  second  finger,  fifty  per  centum  of  daily  wages  during 
thirty  weeks. 

For  the  loss  of  a  third  finger,  fifty  per  centum  of  daily  wages  during 
twenty  weeks. 

For  the  loss  of  a  fourth  fi^nger,  commonly  called  little  finger,  fifty  per 
centum  of  daily  wages  during  fifteen  weeks. 

The  loss  of  the  first  phalange  of  the  thumb,  or  of  any  finger,  shall  be 
considered  to  be  equal  to  the  loss  of  one-half  of  such  thumb,  or  finger, 
and  compensation  shall  be  one-half  the  amounts  above  specified. 

The  loss  of  more  than  one  phalange  shall  be  considered  as  the  loss  of 
the  entire  finger  or  thumb;  providing,  however,  that  in  no  case  shall  the 
amount  received  for  more  than  one  finger  exceed  the  amount  provided 
in  this  schedule  for  the  loss  of  a  hand. 

For  the  loss  of  a  great  toe,  fifty  per  centum  of  daily  wages  during  thirty 
weeks. 

For  the  loss  of  one  of  the  toes  other  than  a  great  toe,  fifty  per  centum 
of  daily  wages  during  ten  weeks. 

For  the  loss  of  the  fiirst  phalange  of  any  toe  shall  be  considered  to  be 
equal  to  the  loss  of  one-half  of  such  toe,  and  compensation  shall  be  one- 
half  of  the  amount  above  specified. 

The  loss  of  more  than  one  phalange  shall  be  considered  as  the  loss  of 
the  entire  toe. 

For  the  loss  of  a  hand,  fifty  per  centum  of  daily  wages  during  one  hun- 
dred and  fifty  weeks. 

For  the  loss  of  an  arm,  fifty  per  centum  of  daily  wages  during  two  hun- 
dred weeks. 

For  the  loss  of  a  foot,  fifty  per  centum  of  daily  wages  during  one  hun- 
dred and  twenty-five  weeks. 

For  the  loss  of  a  leg,  fifty  per  centimi  of  daily  wages  during  one  hun- 
dred and  seventy-five  weeks. 

For  the  loss  of  an  eye,  fifty  per  centum  of  daily  wages  during  one  hun- 
dred weeks. 

The  loss  of  both  hands,  or  both  arms,  or  both  feet,  or  both  legs,  or 
both  eyes,  or  of  any  two  thereof,  shall  constitute  total  and  permanent 
disability,  to  be  compensated  according  to  the  provisions  of  clause  (b). 

In  all  other  cases  in  this  class  the  compensation  shall  bear  such  rela- 
tion to  the  amounts  stated  in  the  above  schedule  as  the  disabihties  bear 
to  those  produced  by  the  injuries  named  in  the  schedule.  Should  the 
employer  and  employe  be  unable  to  agree  upon  the  amount  of  compen- 
sation to  be  paid  in  cases  not  covered  by  the  schedule,  the  amount  of 
compensation  shall  be  settled  according  to  the  provisions  of  paragraph 
twenty  hereof. 

The  amounts  specified  in  this  clause  are  all  subject  to  the  same  limi- 
tations as  to  maximum  and  minimum  as  are  stated  in  clause  (a). 


248 

12.  In  case  of  death  compensation  shall  be  computed  but  not  dis- 
tributed on  the  following  basis: 

(1)  Actual  dependents. 

If  orphan  or  orphans,  a  minimum  of  twenty-five  per  centum  of  wages 
of  deceased,  with  ten  per  centimi  additional  for  each  orphan  in  excess  of 
two,  with  a  maximum  of  sixty  per  centum. 

If  widow  alone,  twenty-five  per  centum  of  wages. 

If  widow  and  one  child,  forty  per  centum  of  wages. 

If  widow  and  two  children,  forty-five  per  centum  of  wages. 

If  widow  and  three  children,  fifty  per  centum  of  wages. 

If  widow  and  four  children,  fifty-five  per  centum  of  wages. 

If  widow  and  five  children  or  more,  sixty  per  centum  of  wages. 

If  widow  and  father  or  mother,  fifty  per  centum  of  wages. 

If  grandparents,  grandchildren,  or  minor,  or  incapacitated  brothers  or 
sisters,  twenty-five  per  centum  of  wages. 

Compensation  in  case  of  death  shall  be  computed  on  the  basis  of  the 
foregoing  schedule,  but  shall  be  distributed  according  to  the  laws  of  this 
State  providing  for  the  distribution  of  the  personal  property  of  an  intes- 
tate decedent,  imless  decedent  has  in  fact  left  a  will, 

(2)  No  dependents. 

Expenses  of  last  sickness  and  burial  not  exceeding  two  hundred  dol- 
lars. 

In  computing  compensation  to  orphans  or  other  children,  only  those 
under  sixteen  years  of  age  shall  be  included,  and  only  during  the  period 
in  which  they  are  under  that  age,  at  which  time  payment  on  account  of 
such  child  shall  cease. 

The  compensation  in  case  of  death  shall  be  subject  to  a  maximum  com- 
pensation of  ten  dollars  per  week  and  a  minimum  of  five  dollars  per  week; 
■provided,  that  if  at  the  time  of  injury  the  employe  receives  wages  of  less 
than  five  dollars  per  week,  then  the  compensation  shall  be  the  fuU  amount 
of  such  wages  per  week.  This  compensation  shaU  be  paid  during  three 
hundred  weeks. 

Compensation  under  this  schedule  shall  not  apply  to  alien  dependents 
not  residents  of  the  United  States. 

13.  No  compensation  shall  be  allowed  for  the  first  two  weeks  after 
injury  received,  except  as  provided  by  paragraph  fourteen,  nor  in  any 
case  unless  the  employer  has  actual  knowledge  of  the  injury  or  is  notified 
thereof  within  the  period  specified  in  paragraph  fifteen. 

14.  During  the  first  two  weeks  after  the  injury  the  employer  shall 
furnish  reasonable  medical  and  hospital  services  and  medicines,  as  and 
when  needed,  not  to  exceed  one  hundred  dollars  in  value,  unless  the  em- 
ploye refuses  to  allow  them  to  be  furnished  by  the  employer. 

15.  Unless  the  employer  shall  have  actual  knowledge  of  the  occurrence 
of  the  injury,  or  unless  the  employe,  or  some  one  on  his  behalf,  or  some 
of  the  dependents,  or  some  one  on  their  behalf,  shall  give  notice  thereof 
to  the  employer  within  fourteen  days  of  the  occurrence  of  the  injury, 


249 

then  no  compensation  shall  be  due  until  such  notice  is  given  or  knowledge 
obtained.  If  the  notice  is  given,  or  the  knowledge  obtained  within  thirty 
days  from  the  occuiTence  of  the  injury,  no  want,  failure,  or  inaccuracy 
of  a  notice  shall  be  a  bar  to  obtaining  compensation,  unless  the  employer 
shall  show  that  he  was  prejudiced  by  such  want,  defect  or  inaccuracy, 
and  then  only  to  the  extent  of  such  prejudice.  If  the  notice  is  given,  or 
the  knowledge  obtained  within  ninety  days,  and  if  the  employe,  or  other 
beneficiary,  shall  show  that  his  failure  to  give  prior  notice  was  due  to  his 
mistake,  inadvertence,  ignorance  of  fact  or  law,  or  inability,  or  to  the 
fraud,  misrepresentation  or  deceit  of  another  person,  or  to  any  other 
reasonable  cause  or  excuse,  then  compensation  may  be  allowed,  unless, 
and  then  to  the  extent  only  that  the  employer  shall  show  that  he  was 
prejudiced  by  failure  to  receive  such  notice.  Unless  knowledge  be  ob- 
tained, or  notice  given,  within  ninety  days  after  the  occurrence  of  the 
injury,  no  compensation  shall  be  allowed. 

16.  The  notice  referred  to  may  be  served  personally  upon  the  em- 
ployer, or  upon  any  agent  of  the  employer  upon  whom  a  summons  may 
be  served  in  a  civil  action,  or  by  sending  it  through  the  mail  to  the  em- 
ployer at  the  last  known  residence  or  business  place  thereof  within  the 
State,  and  shall  be  substantially  in  the  following  form: 

To  (name  of  employer) : 

You  are  hereby  notified  that  a  personal  injury  was  received  by  (name  of  em- 
ployee injured),  who  was  in  your  employ  at  (place)  while  engaged  as  (nature  of 
employment),  on  or  about  the  (  )  day  of  (  ),  nine- 

teen hundred  and  (  ),  and  that  compensation  will  be  claimed  there- 

for. 

Signed, 

(  ). 

but  no  variation  from  this  form  shall  be  material  if  the  notice  is  sufficient 
to  advise  the  employer  that  a  certain  employe,  by  name,  received  an 
injury  in  the  course  of  his  employment  on  or  about  a  specified  time,  at 
or  near  a  certain  place.  Notice  served  at  the  of!ice  of,  or  on  the  person 
who  was  the  employe's  immediate  superior,  shall  be  a  compUance  with 
this  act. 

17.  After  an  injury,  the  employe,  if  so  requested  by  his  employer,  must 
submit  himself  for  examination  at  some  reasonable  time  and  place  witliin 
the  State,  and  as  often  as  may  be  reasonably  requested,  to  a  physician 
or  physicians  authorized  to  practice  under  the  laws  of  this  State.  If  the 
employe  requests,  he  shall  be  entitled  to  have  a  physician  or  physicians 
of  his  own  selection  present  to  participate  in  such  examination.  The 
refusal  of  the  employe  to  submit  to  such  examination  shall  deprive  him 
of  the  right  to  compensation  during  the  continuance  of  such  refusal. 
When  a  right  to  compensation  is  thus  suspended  no  compensation  shall 
be  payable  in  respect  of  the  period  of  suspension. 

18.  In  case  of  a  dispute  over,  or  failure  to  agree  upon,  a  claim  for  com- 
pensation between  employer  and  employe,  or  the  dependents  of  the  em- 


250 

ploye,  either  party  may  submit  the  claim,  both  as  to  questions  of  fact^ 
the  nature  and  effect  of  the  injuries,  and  the  amount  of  compensation 
therefor  according  to  the  schedule  herein  provided,  to  the  judge  of  the 
court  of  common  pleas  of  such  county  as  would  have  jurisdiction  in  a 
civil  case,  or  where  there  is  more  than  one  judge  of  said  court,  then  to 
either  or  any  of  said  judges  of  such  court,  which  judge  is  hereby  author- 
ized to  hear  and  determine  such  disputes  in  a  summary  manner,  and  his 
decision  as  to  all  questions  of  fact  shall  be  conclusive  and  binding. 

19.  In  case  of  death,  where  no  executor  or  administrator  is  qualified^ 
the  said  judge  shall,  by  order,  direct  payment  to  be  made  to  such  person 
as  would  be  appointed  administrator  of  the  estate  of  such  decedent  upon 
like  terms  as  to  bond  for  the  proper  application  of  compensation  pay- 
ments as  are  required  of  administrators. 

20.  Procedure  in  case  of  dispute  shall  be  as  follows: 

Either  party  may  present  a  petition  to  said  judge  setting  forth  the 
names  and  residences  of  the  parties  and  the  facts  relating  to  employment 
at  the  time  of  injury,  the  injury  in  its  extent  and  character,  the  amount 
of  wages  received  at  the  time  of  injury,  the  knowledge  of  the  employer 
or  notice  of  the  occurrence  of  said  injury,  and  such  other  facts  as  may 
be  necessary  and  proper  for  the  information  of  the  said  judge,  and  shall 
state  the  matter  or  matters  in  dispute  and  the  contention  of  the  peti- 
tioner with  reference  thereto.  This  petition  shall  be  verified  by  the  oath 
or  affirmation  of  the  petitioner. 

Upon  the  presentation  of  such  petition  the  same  shall  be  filed  with 
the  clerk  of  the  court  of  common  pleas,  and  the  judge  shall  fix  a  time  and 
place  for  the  hearing  thereof,  not  less  than  three  weeks  after  the  date  of 
the  filing  of  said  petition.  A  copy  of  said  petition  shall  be  served  as 
sunamons  in  a  civil  action  and  may  be  served  within  four  days  thereafter 
upon  the  adverse  party.  Within  seven  days  after  the  service  of  such 
notice  the  adverse  party  shall  file  an  answer  to  said  petition,  which  shall 
admit  or  deny  the  substantial  avennents  of  the  petition,  and  shall  state 
the 'contention  of  the  defendant  with  reference  to  the  matters  in  dispute 
as  disclosed  by  the  petition.  The  answer  shall  be  verified  in  like  manner 
as  required  for  a  petition. 

At  the  time  fixed  for  hearing  or  any  adjournment  thereof  the  said 
judge  shall  hear  such  witnesses  as  may  be  presented  by  each  party,  and 
in  a  summary  manner  decide  the  merits  of  the  controversy.  This  deter- 
mination shall  be  filed  in  writing  with  the  clerk  of  the  common  pleas 
court,  and  judgment  shall  be  entered  thereon  in  the  same  manner  as  in 
causes  tried  in  the  court  of  common  pleas,  and  shall  contain  a  statement 
of  facts  as  determined  by  said  judge.  Subsequent  proceedings  thereon 
shall  only  be  for  the  recovery  of  moneys  thereby  detennined  to  be  due, 
provided  that  nothing  herein  contained  shall  be  construed  as  limiting 
the  jurisdiction  of  the  Supreme  Court  to.  review  questions  of  law  by  cer- 
tiorari. Costs  may  be  awarded  by  said  judge  in  his  discretion,  and  when 
so  awarded  the  same  costs  shall  be  allowed,  taxed  and  collected  as  are- 


251 

allowed,   taxed   and   collected   for   like   services   in  the   common   pleas 
court. 

21.  The  amounts  payable  periodically  as  compensation  may  be  com- 
muted to  one  or  more  lump  sum  payments  by  the  judge  of  the  court  of 
common  pleas  having  jurisdiction  as  set  forth  in  the  preceding  paragraph, 
upon  the  application  of  either  party,  in  his  discretion,  provided  the  same 
be  in  the  interest  of  justice.  Unless  so  approved,  no  compensation  pay- 
ments shall  be  commuted. 

An  agreement  or  award  of  compensation  may  be  modified  at  any  time 
by  a  subsequent  agreement,  or  at  any  time  after  one  year  from  the  time 
when  the  same  became  operative  it  may  be  reviewed  upon  the  applica- 
tion of  either  party  on  the  ground  that  the  incapacity  of  the  injured  em- 
ploye has  subsequently  increased  or  diminished.  In  such  case  the  pro- 
visions of  paragraph  seventeen  with  reference  to  medical  examination 
shall  apply. 

22.  The  right  of  compensation  granted  by  this  act  shall  have  the  same 
preference  against  the  assets  of  the  employer  as  is  now  or  may  hereafter 
be  allowed  by  law  for  a  claim  for  unpaid  wages  for  labor.  Claims  or 
payments  due  under  this  act  shall  not  be  assignable,  and  shall  be  exempt 
from  all  claims  of  creditors  and  from  levy,  execution  or  attachment. 

SECTION   III.      GENERAL  PROVISIONS. 

23.  For  the  purposes  of  this  act,  willful  negligence  shall  consist  of 
(1)  deliberate  act  or  deliberate  failure  to  act,  or  (2)  such  conduct  as  evi- 
dences reckless  indifference  to  safety,  or  (3)  intoxication,  operating  as 
the  proximate  cause  of  injury. 

Wherever  in  this  act  the  singular  is  used  the  plural  shall  be  included: 
where  the  masculine  gender  is  used,  the  feminine  and  neuter  shall  be 
included. 

Employer  is  declared  to  be  synonymous  with  master  and  includes 
natural  persons,  partnerships  and  corporations;  employe  is  synonymous 
with  servant  and  includes  all  natural  persons  who  perform  service  for 
another  for  financial  consideration,  exclusive  of  casual  employments. 

Amputation  between  the  elbow  and  the  wrist  shall  be  considered  as 
the  equivalent  of  the  loss  of  a  hand,  and  amputation  between  the  knee 
and  the  ankle  shall  be  considered  as  the  equivalent  of  the  loss  of  a  foot. 

24.  In  case  for  any  reason  any  paragraph  or  any  provision  of  this  act 
shall  be  questioned  in  any  court  and  shall  be  held  to  be  unconstitutional 
or  invalid,  the  same  shall  not  be  held  to  affect  any  other  paragraph  or 
provision  of  this  act,  except  that  sections  I  and  II  are  hereby  declared 
to  be  inseparable,  and  if  either  section  be  declared  void  or  inoperative 
in  an  essential  part,  so  that  the  whole  of  such  section  must  fall,  the  other 
section  shall  fall  with  it  and  not  stand  alone.  Section  I  of  this  act  shall 
not  apply  in  cases  where  section  II  becomes  operative  in  accordance 
with  the  provisions  thereof,  but  shall  apply  in  all  other  cases,  and  in  such 
cases  shall  be  in  extension  of  the  common  law. 


252 

25.  Every  right  of  action  for  negligence,  or  to  recover  damages  for 
injuries  resulting  in  death,  existing  before  this  act  shall  take  effect,  is 
•continued,  and  nothing  in  this  act  contained  shall  be  construed  as  affect- 
ing any  such  right  of  action,  nor  shall  the  failure  to  give  the  notice  pro- 
vided for  in  section  II,  paragraph  fifteen  of  this  act,  be  a  bar  to  the  main- 
tenance of  a  suit  upon  any  right  or  action  existing  before  this  act  shall 
take  effect. 

26.  All  acts  or  parts  of  acts  inconsistent  with  the  provisions  of  this 
act  are  hereby  repealed. 

27.  This  act  shall  take  effect  on  the  fourth  day  of  July  next  succeed- 
ing its  passage  and  approval.  Approved  April  4,  1911. 

Laws  of  1911,  Chapter  241. 

An  Act  creating  the  Employees'  Liability  Commission  and  pre- 
scribing ITS  Powers  and  Duties,  and  requiring  Reports  to  be 
MADE  by  the  Employers  of  Labor  upon  the  Operations  op  the 
Employers'  Liability  Law  for  the  Information  of  Said  Com- 
mission. 

Be  it  enacted  by  the  Senate  and  General  Assembly  of  the  State  of  New 

Jersey: 

1.  The  Governor  is  hereby  authorized  to  appoint  six  citizens  of  this 
State  as  an  employers'  liability  commission,  who  shall  hold  their  offices 
for  the  term  of  two  years  and  until  their  successors  are  appointed  and 
qualified.  They  shall  receive  no  compensation  for  their  services,  but 
their  actual  traveling  expenses  incurred  upon  the  business  of  the  com- 
mission shall  be  paid  by  the  State  Treasurer,  upon  warrants  approved  by 
the  president  of  the  said  commission.  The  commission  shall  have  power 
to  choose  one  of  their  number  as  president  and  one  of  their  number  as 
secretary,  and  shall  have  power  to  appoint  a  clerk.  The  expenses  of  the 
commission,  the  salary  of  the  secretary  and  of  the  clerk  shall  be  paid 
from  appropriations  made  for  that  purpose  in  any  annual  or  supplemental 
appropriation  bill.  It  shall  be  the  duty  of  the  commission  to  observe  in 
detail,  so  far  as  possible,  the  operations  throughout  the  State  of  the  recent 
act  of  the  Legislature  commonly  known  as  "The  Employers'  Liability 
Act,"  entitled  "An  act  prescribing  the  liability  of  an  employer  to  make 
compensation  for  injuries  received  by  an  employe  in  the  course  of  em- 
ployment, establishing  an  elective  schedule  of  compensation  and  regu- 
lating procedure  for  the  determination  of  liability  and  compensation  there- 
under," approved  April  fourth,  one  thousand  nine  hundred  and  eleven. 

2.  From  and  after  the  fourth  day  of  July  next,  when  the  said  law  becomes 
operative,  every  employer  of  labor  within  the  State  of  New  Jersey  shall 
report  to  said  commission,  upon  the  occurrence  of  any  injury  to  any  of 
his  employes  the  name  and  nationahty  of  the  employe  so  injured,  the 
nature  and  extent  of  such  injury,  whether  said  injured  employe  and  the 
employer  at  the  time  of  said  injury  were  subject  to  the  provisions  of 


253 

section  one  or  section  two  of  said  act,  and  the  amount  of  compensation 
when  determined,  together  with  such  other  facts  relating  to  such  injury 
as  the  commission  may  request.  The  information  thus  received  shall  be 
tabulated,  from  time  to  time,  and  the  records  thereof  shall  be  the  private 
records  of  the  conamission;  they  shall  not  be  made  public  or  open  to 
inspection  unless  in  the  opinion  of  the  commission  the  public  interests 
shall  require  it,  and  they  shall  not  be  used  as  evidence  against  any  em- 
ployer in  any  suit  or  action  at  law  brought  by  any  employe  for  the  recovery 
of  damages.  The  commission  shall  hold  meetings,  from  time  to  time,  as 
they  may  deem  necessary,  and  shall  present  to  each  session  of  the  Legis- 
lature a  report  showing  the  operations  under  the  said  act  during  the  pre- 
ceding year,  together  with  any  suggestions  or  recommendations  which 
they  may  deem  necessary  or  proper  for  the  improvement  of  the  said  act, 
in  order  to  accomplish  with  the  greatest  efficiency  the  purposes  of  the 
said  act. 
3.  This  act  shall  take  effect  immediately. 

Approved  April  27,  1911. 

Laws  of  1911,  Chapter  368. 

A  Supplement  to  An  Act  entitled  "An  Act  prescribing  the: 
Liability  of  an  Employer  to  make  Compensation  for  Injuries 
received  by  an  employe  in  the  course  of  employment,  estab- 
LISHING AN  Elective  Schedule  of  Compensation,  and  regulating 
Procedure  for  the  Determination  of  Liability  and  Compensa- 
tion thereunder,"  approved  April  Fourth,  One  Thousand  Nine 
Hundred  and  Eleven. 

Be  it  enacted  by  the  Senate  and  General  Assembly  of  the  State  of  New 

Jersey: 

1.  Every  contract  of  hiring,  verbal,  written  or  implied  from  circum- 
stances, now  in  operation  or  made  or  imphed  prior  to  the  time  limited- 
for  the  act  to  which  this  act  is  a  supplement  to  take  effect,  shall,  after 
this  act  takes  effect,  be  presumed  to  continue  subject  to  the  provisions 
of  section  two  of  the  act  to  which  this  act  is  a  supplement,  unless  either 
party  shall,  prior  to  accident,  in  writing,  notify  the  other  party  to  such 
contract  that  the  provisions  of  section  two  of  the  act  to  which  this  act 
is  a  supplement  are  not  intended  to  apply. 

2.  This  act  shall  take  effect  on  the  fourth  day  of  July  next  succeeding: 
its  passage  and  approval.  Approved  May  2,  1911. 


254 


NEW  YORK. 
Laws  of  1910,  Chapter  352. 

An  Act  to  amend  the  Labor  Laws,  in  Relation  to  Employee's 

Liability. 

The  People  of  the  State  of  New  York,  represented  in  Senate  and  Assembly, 

do  enact  as  follows: 

Section  L  Sections  two  hundred,  two  hundred  and  one  and  two  hun- 
dred and  two  of  chapter  thirty-six  of  the  laws  of  nineteen  hundred  and 
nine,  entitled  "An  act  relating  to  labor,  constituting  chapter  thirty-one 
of  the  consolidated  laws,"  are  hereby  amended  to  read,  respectively,  as 
follows: 

§  200.  Employer's  liability  for  injuries.  When  personal  injury  is 
caused  to  an  employee  who  is  himself  in  the  exercise  of  due  care  and 
diligence  at  the  time: 

1.  By  reason  of  any  defect  in  the  condition  of  the  ways,  works,  ma- 
chinery, or  plant,  connected  with  or  used  in  the  business  of  the  employer 
which  arose  from  or  had  not  been  discovered  or  remedied  owing  to  the 
negligence  of  the  employer  or  of  any  person  in  the  service  of  the  employer 
and  intrusted  by  him  with  the  duty  of  seeing  that  the  ways,  works,  ma- 
chinery, or  plant,  were  in  proper  condition; 

2.  By  reason  of  the  negUgence  of  any  person  in  the  service  of  the 
employer  intrusted  with  any  superintendence  or  by  reason  of  the  negli- 
gence of  any  person  intrusted  with  authority  to  direct,  control  or  com- 
mand any  employee  in  the  performance  of  the  duty  of  such  employee. 
The  employee,  or  in  case  the  injury  results  in  death,  the  executor  or 
administrator  of  a  deceased  employee  who  has  left  him  surviving  a  hus- 
band, wife  or  next  of  kin,  shall  have  the  same  right  of  compensation  and 
remedies  against  the  employer  as  if  the  employee  had  not  been  an  em- 
ployee of  nor  in  the  service  of  the  employer  nor  engaged  in  his  work. 
The  provisions  of  law  relating  to  actions  for  causing  death  by  negligence, 
so  far  as  the  same  are  consistent  with  this  act,  shall  apply  to  an  action 
brought  by  an  executor  or  administrator  of  a  deceased  employee,  suing 
under  the  provisions  of  this  article.  If  an  employer  enters  into  a  con- 
tract, written  or  verbal,  with  an  independent  contractor  to  do  part  of 
such  employer's  work,  or  if  such  contractor  enters  into  a  contract  with 
a  subcontractor  to  do  all  or  any  part  of  the  work  comprised  in  such  con- 
tractor's contract  with  the  employer,  such  contract  or  subcontract  shall 
not  bar  the  liability  of  the  employer  for  the  injuries  to  the  employees  of 
such  contractor  or  subcontractor,  caused  by  any  defect  in  the  condition 
of  the  ways,  works,  machinery,  or  plant,  if  they  are  the  property  of  the 
employer  or  are  furnished  by  him,  and  if  such  defect  arose,  or  had  not 
been  discovered  or  remedied,  through  the  negligence  of  the  employer,  or 
of  some  person  intrusted  by  him  with  the  duty  of  seeing  that  they  were 
in  proper  condition. 


255 

§  201.  Notice  to  be  served.  No  action  for  recovery  of  compensa- 
tion for  injury  or  death  under  this  article  shall  be  maintained  unless 
notice  of  the  time,  place  and  cause  of  the  injury  is  given  to  the  em- 
ployer within  one  hundred  and  twenty  days  and  the  action  is  com- 
menced within  one  year  after  the  occurrence  of  the  accident  causing 
the  injury  or  death.  The  notice  required  by  this  section  shall  be  in 
writing  and  signed  by  the  person  injured  or  by  some  one  in  his  behalf, 
but  if  from  physical  or  mental  incapacity  it  is  impossible  for  the  per- 
son injured  to  give  notice  within  the  time  provided  in  this  section,  he 
may  give  the  same  within  ten  days  after  such  incapacity  is  removed. 
In  case  of  his  death  without  having  given  such  notice,  his  executor  or 
administrator  may  give  such  notice  within  sixty  days  after  his  ap- 
pointment, but  no  notice  under  the  provisions  of  this  section  shall  be 
deemed  to  be  invalid  or  insufficient  solely  by  reason  of  any  inaccuracy 
in  stating  the  time,  place  or  cause  of  the  injury  if  it  be  shown  that  there 
was  no  intention  to  mislead  and  that  the  party  entitled  to  notice  was  not 
in  fact  misled  thereby.  If  such  notice  does  not  apprise  the  employer  of 
the  time,  place  or  cause  of  injury,  he  may,  within  eight  days  after  service 
thereof,  serve  upon  the  sender  a  written  demand  for  a  further  notice, 
which  demand  must  specify  the  particular  in  which  the  first  notice  is 
claimed  to  be  defective,  and  a  failure  by  the  employer  to  make  such  de- 
mand as  herein  provided  shall  be  a  waiver  of  all  defects  that  the  notice 
may  contain.  After  service  of  such  demand  as  herein  provided,  the 
sender  of  such  notice  may  at  any  time  within  eight  days  thereafter  serve 
an  amended  notice  which  shall  supersede  such  first  notice  and  have  the 
same  effect  as  an  original  notice  hereunder.  The  notice  required  by  this 
section  shall  be  served  on  the  employer,  or  if  there  is  more  than  one  em- 
ployer, upon  one  of  such  employers,  and  may  be  served  by  delivering  the 
same  to  or  at  the  residence  or  place  of  business  of  the  person  on  whom  it 
is  to  be  served.  The  notice  or  demand  may  be  served  by  post  by  letter 
addressed  to  the  person  on  whom  it  is  to  be  served,  at  his  last  known 
place  of  residence  or  place  of  business,  and  if  served  by  post  shall  be 
deemed  to  have  been  served  at  the  time  when  the  letter  containing  the 
same  would  be  delivered  in  the  ordinary  course  of  the  post.  When  the 
employer  is  a  corporation,  notice  shall  be  served  by  delivering  the  same 
or  by  sending  it  by  post  addressed  to  the  office  or  principal  place  of  busi- 
ness of  such  corporation. 

§  202,  Assumption  of  risks:  contributory  negligence,  when  a 
question  of  fact.  An  employee  by  entering  upon  or  continuing  in  the  serv- 
ice of  the  employer  shall  be  presumed  to  have  assented  to  the  necessary 
risks  of  the  occupation  or  employment  and  no  others.  The  necessary  risks 
of  the  occupation  or  employment  shall,  in  all  cases  arising  after  this  article 
takes  effect,  be  considered  as  including  those  risks,  and  those  only,  inher- 
ent in  the  nature  of  the  business  which  remain  after  the  employer  has 
exercised  due  care  in  providing  for  the  safety  of  his  employees,  and  has 
complied  with  the  laws  affecting  or  regulating  such  business  or  occupa- 
tion for  the  greater  safety  of  such  employees.     In  an  action  brought  to 


256 

recover  damages  for  personal  injury  or  for  death  resulting  therefrom  re- 
ceived after  this  act  takes  effect,  owing  to  any  cause,  including  open  and 
visible  defects,  for  which  the  employer  would  be  liable  but  for  the  hitherto 
available  defense  of  assumption  of  risk  by  the  employee,  the  fact  that  the 
employee  continued  in  the  service  of  the  employer  in  the  same  place  and 
course  of  employment  after  the  discovery  by  such  employee,  or  after  he 
had  been  informed  of  the  danger  of  personal  injury  therefrom  shall  not 
be,  as  matter  of  fact  or  as  matter  of  law,  an  assumption  of  the  risk  of 
injury  therefrom,  but  an  employee,  or  his  legal  representative,  shall  not 
be  entitled  under  this  article  to  any  right  of  compensation  or  remedy 
against  the  employer  in  any  case  where  such  employee  knew  of  the  defect 
or  negligence  which  caused  the  injury  and  failed,  within  a  reasonable 
time,  to  give,  or  cause  to  be  given,  information  thereof  to  the  employer, 
or  to  some  person  superior  to  himself  in  the  service  of  the  employer,  or 
who  had  intrusted  to  him  some  superintendence,  unless  it  shall  appear 
on  the  trial  that  such  defect  or  negligence  was  known  to  such  employer, 
or  superior  person,  prior  to  such  injuries  to  the  employee;  or  unless  such 
defect  could  have  been  discovered  by  such  employer  by  reasonable  and 
proper  care,  tests  or  inspection. 

§  2.  Such  chapter  is  hereby  amended  by  inserting  therein  a  new  sec- 
tion to  be  section  two  hundred  and  two-a,  to  read  as  follows: 

§  202-a.  Trial;  burden  of  proof.  On  the  trial  of  any  action  brought 
by  an  employee  or  his  personal  representative  to  recover  damages  for 
negligence  arising  out  of  and  in  the  course  of  such  employment,  contribu- 
tory negligence  of  the  injured  employee  shall  be  a  defense  to  be  so 
pleaded  and  proved  by  the  defendant, 

§  3.  Such  chapter  is  hereby  amended  by  adding  at  the  end  of  article 
fourteen  thereof  seven  new  sections,  to  read  as  follows: 

§  205.  Consent  of  employer  and  employee  to  compensation 
plan.  When  and  if  any  employer  in  this  state  and  any  of  his  em- 
ployees shall  consent  to  the  compensation  plan  described  in  sections 
two  hundred  and  six  to  two  hundred  and  twelve,  inclusive,  of  this  article, 
hereinafter  referred  to  as  the  plan,  and  shall  signify  their  consent  thereto- 
in  writing  signed  by  each  of  them  or  their  authorized  agents,  and  acknowl- 
edged in  the  manner  prescribed  by  law  for  taking  the  acknowledgment  of 
a  conveyance  of  real  property,  and  such  writing  is  filed  with  the  county 
clerk  of  the  county  in  which  it  is  signed  by  the  employee,  then  so  long  a& 
such  consent  has  not  expired  or  been  canceled  as  hereinafter  provided, 
such  employee,  or  in  case  injury  to  him  results  in  death,  his  executor  or 
administrator,  shall  have  no  other  right  of  action  against  the  employer 
for  personal  injury  or  death  of  any  kind,  under  any  statute  or  at  common 
law,  save  under  the  plan  so  consented  to,  except  where  personal  injury 
to  the  employee  is  caused  in  whole  or  in  part  by  the  failure  of  the  employer 
to  obey  a  valid  order  made  by  the  commissioner  of  labor  or  other  public 
authority  authorized  to  require  the  employer  to  safeguard  his  employees, 
or  where  such  injury  is  caused  by  the  serious  or  willful  misconduct  of 


257 

the  employer.  In  such  excepted  cases  thus  described,  no  right  of  action 
which  the  employee  has  at  common  law  or  by  any  other  statute  shall  be 
affected  or  lost  by  his  consent  to  the  plan,  if  such  employee,  or  in  case  of 
death  his  executor  or  administrator,  commences  such  action  before  ac- 
cepting any  benefit  under  such  plan  or  giving  any  notice  of  injury  as 
provided  in  section  two  hundred  and  six  hereof.  The  commencing  of  any 
legal  action  whatsoever  at  common  law  or  by  any  statute  against  the 
employer  on  account  of  such  injury,  except  under  the  plan,  shall  bar  the 
employee,  and  in  the  event  of  his  death  his  executors,  administrators, 
dependents  and  other  beneficiaries,  from  all  benefit  under  the  plan.  This 
section  and  sections  two  hundred  and  six  to  two  hundred  and  twelve, 
inclusive,  of  this  article  shall  not  apply  to  a  railroad  corporation,  foreign 
or  domestic,  doing  business  in  this  state,  or  a  receiver  thereof,  or  to  any 
person  employed  by  such  corporation  or  receiver. 

§  206.  Liability  to  pay  compensation;  notice  of  accident;  If 
personal  injury  by  accident  arising  out  of  and  in  the  course  of  the 
employment  is  caused  to  the  employee,  the  employer  shall,  subject 
as  hereinafter  mentioned,  be  liable  to  pay  compensation  under  the 
plan  at  the  rates  set  out  in  section  two  hundred  and  seven  of  this 
article:  provided  that  the  employer  shall  not  be  liable  in  respect  of  any 
injury  which  does  not  disable  the  employee  for  a  period  of  at  least  two 
weeks  from  earning  full  wages  at  the  work  at  which  he  was  employed, 
and  that  the  employer  shall  not  be  liable  in  respect  of  any  injury  to  the 
employee  which  is  caused  by  the  serious  and  willful  misconduct  of  that 
employee.  No  proceedings  for  recovery  under  the  plan  provided  hereby 
shall  be  maintained  unless  notice  of  the  accident  has  been  given  to  the 
employer  as  soon  as  practicable  after  the  happening  thereof  and  before 
the  employee  has  voluntarily  left  the  emplo3anent  in  which  he  was  in- 
jured and  during  such  disability,  and  unless  claim  for  compensation  with 
respect  to  the  accident  has  been  made  within  six  months  from  the  occur- 
rence of  the  accident,  or  in  the  case  of  death  of  the  employee,  or  in  the 
event  of  his  physical  or  mental  incapacity  within  six  months  after  such 
death  or  removal  of  such  physical  or  mental  incapacity,  or  in  the  event 
that  weekly  payments  have  been  made  under  the  plan,  within  six  months 
after  such  payments  have  ceased;  but  no  want  of  or  defect  or  inaccuracy 
of  a  notice  shall  be  a  bar  to  the  maintenance  of  proceedings  under  the 
plan  unless  the  employer  proves  that  he  is  prejudiced  by  such  want, 
defect  or  inaccuracy.  Notice  of  the  accident  shall  apprise  the  employer 
of  the  claim  for  compensation  under  this  plan  and  shall  state  the  name 
and  address  of  the  employee  injured,  the  date  and  place  of  the  accident 
and  in  simple  language  the  cause  thereof.  The  notice  may  be  served 
personally  or  by  sending  it  by  mail  in  a  registered  letter  addressed  to  the 
employer  at  his  last  known  residence  or  place  of  business. 

§  207.  Amount  of  compensation;  persons  entitled,  physical  ex- 
amination. The  amount  of  compensation  under  the  plan  shall  be: 
1.  In  case  death  results  from  injury: 


258 

(a)  If  the  employee  leaves  a  widow  or  next  of  kin  at  the  time  of  his 
death  wholly  dependent  on  his  earnings,  a  sum  equal  to  twelve  hundred 
times  the  daily  earnings  of  the  employee  at  the  rate  at  which  he  was 
being  paid  by  the  employer  at  the  time  of  the  accident,  but  not  more  in 
anj^  event  than  three  thousand  dollars.  Any  weekly  payments  previously 
made  under  the  plan  shall  be  deducted  in  ascertaining  such  amount  pay- 
able on  death, 

(b)  If  such  widow  or  next  of  kin  or  anj^  of  them  are  in  part  only  de- 
pendent upon  his  earnings,  such  sum  not  exceeding  that  provided  in  sub- 
division a  as  may  be  determined  to  be  reasonable  and  proportionate  to 
the  injury  to  such  dependents. 

(c)  If  he  leaves  no  widow,  or  next  of  kin  so  dependent  in  whole  or 
in  part,  the  reasonable  expenses  of  his  medical  attendance  and  burial, 
not  exceeding  one  hundred  dollars.  Whatever  sum  may  be  determined 
to  be  payable  under  the  plan,  in  case  of  death  of  the  injured  employee, 
shall  be  paid  to  his  legal  representative  for  the  benefit  of  such  dependents, 
or  if  he  leaves  no  such  dependents,  for  the  benefit  of  the  person  to  whom 
the  expenses  of  medical  attendance  and  burial  are  due. 

2.  Where  total  or  partial  incapacity  for  work  at  any  gainful  employ- 
ment results  to  the  employee  from  the  injury,  a  weekly  payment  commenc- 
ing at  the  end  of  the  second  week  after  the  injury  and  continuing  during 
incapacit]^,  subject  as  herein  provided,  not  exceeding  fifty  per  centum  of 
his  average  weekly  earnings  when  at  work  on  full  time  during  the  pre- 
ceding year  during  which  he  shall  have  been  in  the  employment  of  the 
same  employer,  or  if  he  shall  have  been  employed  less  than  a  year,  then 
a  weekly  payment  of  not  exceeding  three  times  the  average  daily  earn- 
ings on  full  time  for  such  less  period. 

In  fixing  the  amount  of  the  weekly  payment,  regard  shall  be  had  to 
any  payment,  allowance  or  benefit  which  the  workman  may  have  received 
from  the  employer  during  the  period  of  his  incapacity,  and  in  the  case  of 
partial  incapacity  the  weekly  payment  shall  in  no  case  exceed  the  differ- 
ence between  the  amount  of  the  average  weekly  earnings  of  the  workman 
before  the  accident  and  the  average  amount  which  he  is  earning  or  is 
able  to  earn  in  some  suitable  employment  or  business  after  the  accident 
but  shall  amount  to  one-half  of  such  difference.  In  no  event  shall  any 
weekly  payment  payable  under  the  plan  exceed  ten  dollars  per  week  or 
extend  over  more  than  eight  years  from  the  date  of  the  accident.  Any 
person  entitled  to  receive  weekly  payments  under  the  plan  is  required, 
if  requested  by  the  employer,  to  submit  himself  for  examination  by  a 
duly  qualified  medical  practitioner  or  surgeon  provided  and  paid  for  by 
the  employer,  at  a  time  and  place  reasonably  convenient  for  the  employee, 
within  three  weeks  after  the  injury,  and  thereafter  at  intervals  not  oftener 
than  once  in  six  weeks.  If  the  workman  refuses  so  to  submit  or  obstructs 
the  same,  his  right  to  weekly  payments  shall  be  suspended  until  such 
examination  shall  have  taken  place,  and  no  compensation  shall  be  pay- 
able under  the  plan  during  such  period.     In  case  an  injured  employee 


259 

shall  be  mentally  incompetent  at  the  time  when  any  right  or  privilege 
accrues  to  him  under  the  plan,  a  committee  or  guardian  of  the  incompetent 
appointed  pursuant  to  law  may,  on  behalf  of  such  incompetent,  claim  and 
exercise  any  such  right  or  privilege  with  the  same  force  and  effect  as  if 
the  employee  himself  had  been  competent  and  had  claimed  or  exercised 
any  such  right  or  privilege;  and  no  limitation  of  time  herein  provided 
for  shall  run  so  long  as  said  incompetent  employee  has  no  committee  or 
guardian. 

§  208.  Settlement  of  disputes.  Any  question  of  law  or  fact  arising 
in  regard  to  the  application  of  the  plan  in  determining  the  compensation 
payable  thereunder  or  otherwise  shall  be  determined  either  by  agreement 
or  by  arbitration  as  provided  in  the  code  of  civil  procedure,  or  by  an  action 
at  law  as  herein  provided.  In  case  the  employer  shall  be  in  default  in  any 
of  his  obligations  to  the  employee  under  the  plan,  the  injured  employee  or 
his  committee  or  guardian,  if  such  be  appointed,  or  his  executor  or  admin- 
istrator, may  then  bring  an  action  to  recover  compensation  under  the  plan 
in  any  court  having  jurisdiction  thereof  as  on  a  written  contract.  Such 
action  shall  be  conducted  in  the  same  manner  as  an  action  at  law  for  the 
recovery  of  damages  for  breach  of  a  Avritten  contract,  and  shall  for  all 
purposes,  including  the  determination  of  jurisdiction,  be  deemed  such 
an  action.  The  judgment  in  such  action,  in  favor  of  the  plaintiff,  shall 
be  for  a  lump  sum  equal  to  the  amount  of  the  payments  then  due  and 
prospectively  due  under  the  plan.  In  such  action  by  an  executor  or 
administrator  the  judgment  may  provide  the  proportions  of  the  award  or 
the  costs  to  be  distributed  to  or  between  the  several  dependents.  If  such 
determination  is  not  made  it  shall  be  determined  by  the  surrogate's  court 
by  which  such  executor  or  administrator  is  appointed,  in  accordance  with 
the  terms  of  this  article  on  petition  of  any  party  on  such  notice  as  such 
court  may  direct. 

§  209.  Preferential  claim;  not  assignable  or  subject  to  attach- 
ment ;  attorney's  fee.  Any  person  entitled  to  weekly  payments  imder  the 
plan  against  any  employer  shall  have  the  same  preferential  claim  therefor 
against  the  assets  of  the  employer  as  now  allowed  by  law  for  a  claim  by 
such  person  against  such  employer  for  unpaid  wages  or  personal  services. 
Weekly  payments  due  under  the  plan  shall  not  be  assignable  or  subject 
to  attachment,  levy  or  execution.  No  claim  of  an  attorney  for  any  con- 
tingent interest  in  any  recovery  under  the  plan  for  services  in  securing 
such  recovery  shall  be  an  enforceable  lien  thereon,  unless  the  amount  of 
the  same  be  approved  in  writing  by  a  justice  of  the  supreme  court,  or  in 
case  the  same  is  tried  in  any  court,  before  the  justice  presiding  at  such 
trial. 

§  210.  Cancellation  of  consent.  When  a  consent  to  the  plan  shall 
have  been  filed  in  the  office  of  the  county  clerk  as  herein  provided,  it  shall 
be  binding  upon  both  parties  thereto  as  long  as  the  relation  of  employer  and 
employee  exists  between  the  parties,  and  expire  at  the  end  of  such  employ- 
ment, but  it  may  at  any  time  be  canceled  on  sixty  days'  notice  in  writing 


260 

from  either  party  to  the  other.  Such  notice  of  cancellation  shall  be  effective 
only  if  served  personally  or  sent  by  registered  letter  to  the  last  known  post- 
office  address  of  the  party  to  whom  it  is  addressed,  but  no  notice  of  can- 
cellation shall  be  effective  as  to  a  claim  for  injury  occurring  previous 
thereto. 

§  211.  Reports  of  compensation  plan.  Each  employer  who  shall 
sign  with  any  employee  a  consent  to  the  plan  shall,  within  thirty  days 
thereafter,  file  with  the  cormnissioner  of  labor  a  statement  thereof,  signed 
by  such  employer,  which  shall  show  (a)  the  name  of  the  employer  and  his 
post-office  address,  (b)  the  name  of  the  employee  and  his  last  known 
post-office  address,  (c)  the  date  of  and  office  where  the  original  consent  is 
filed,  (d)  the  weekly  wage  of  the  employee  at  the  time  the  consent  is  signed; 
unless  such  statement  is  duly  filed,  such  consent  of  the  employee  shall  not 
be  a  bar  to  any  proceeding  at  law  commenced  by  the  employee  against  the 
employer. 

§  212.  Reports  by  employer.  Each  employer  of  labor  in  this  state 
who  shall  have  entered  into  the  plan  with  any  employee  shall,  on  or  before 
the  first  day  of  January,  nineteen  hundred  and  eleven,  and  thereafter  and 
at  such  times  as  may  be  required  by  the  commissioner  of  labor,  make  a  re- 
port to  such  commissioner  of  all  amounts,  if  any,  paid  by  him  under  such 
plan  to  injured  emploj'-ees,  stating  the  name  of  such  employees,  and  show- 
ing separately  the  amounts  paid  under  agreement  with  the  employees,  and 
the  amounts  paid  after  proceedings  at  law,  and  the  proceedings  at  law 
under  the  plan  then  pending.  Such  reports  shall  be  verified  by  the  em- 
ployer or  a  duly  authorized  agent  in  the  same  manner  as  affidavits. 

§  4.  This  act  shall  take  effect  September  one,  nineteen  hundred  and 
ten.  Approved  Maij  23,  1910. 


OHIO. 
Laws  of  1911,  Page  524. 

An  Act  to  create  a  State  Insurance  Fund  for  the  Benefit  of 
Injured,  and  the  Dependents  of  Killed  Employes,  and  to  pro- 
vide FOR  the  Administration  of  Such  Fund  by  a  State  Liability 
Board  of  Awards. 
Be  it  enacted  by  the  General  Assembly  of  the  State  of  Ohio: 

Section  1.  There  is  hereby  created  a  state  liability  board  of  awards, 
to  be  composed  of  three  members,  not  more  than  two  of  whom  shall 
belong  to  the  same  political  party,  to  be  appointed  by  the  governor, 
within  thirty  days  after  the  passage  of  this  act,  one  of  which  members 
shall  be  appointed  for  the  term  of  two  years,  one  member  for  four  years 
and  one  member  for  six  years,  and  thereafter  as  their  terms  expire  the 
governor  shall  appoint  one  member  for  the  term  of  six  years.  Vacancies 
shall  be  filled  by  appointment  by  the  governor  for  the  unexpired  term. 
Section  2.    Each  member  of  the  board  shall  devote  his  entire  time  to 


261 

the  duties  of  his  office  and  shall  not  hold  any  position  of  trust  or  profit 
or  engage  in  any  occupation  or  business  interfering  or  inconsistent  with 
his  duty  as  such  member,  or  serve  on  or  under  any  committee  of  any 
political  party. 

Section  3.  Each  member  of  the  board  shall  receive  an  annual  salary 
of  five  thousand  dollars,  payable  in  the  same  maimer  as  salaries  of  state 
officers  are  paid. 

Section  4.  The  board  shall  be  in  continuous  session  and  open  for 
the  transaction  of  business  during  all  the  business  hours  of  each  and  every 
day,  excepting  Sundays  and  legal  holidays.  All  sessions  shall  be  open  to 
the  public,  and  shall  stand  and  be  adjourned  without  further  notice  thereof 
on  its  records.  All  proceedings  of  the  board  shall  be  shown  on  its  record 
of  proceedings,  wliich  shall  be  a  pubUc  record,  and  shall  contain  a  record 
of  each  case  considered,  and  the  award  made  with  respect  thereto,  and 
all  voting  shall  be  had  by  the  calling  of  each  member's  name  by  the  secre- 
tary and  each  vote  shall  be  recorded  as  cast. 

Section  5.  A  majority  of  the  board  shall  constitute  a  quorum  for  the 
transaction  of  business,  and  a  vacancy  shall  not  impair  the  right  of  the 
remaining  members  to  exercise  all  the  powers  of  the  fuU  board  so  long 
as  a  majority  remains.  Any  investigations,  inquiry  or  hearing  which 
the  board  is  authorized  to  hold,  or  undertake,  may  be  held  or  undertaken 
by  or  before  any  one  member  of  the  board.  All  investigations,  inquiries, 
hearings  and  decisions  of  the  board,  and  every  order  made  by  a  member 
thereof,  when  approved  and  confirmed  by  a  majority  of  the  members, 
and  so  shown  on  its  record  of  proceedings,  shall  be  deemed  to  be  the  order 
of  the  board. 

Section  6.  The  board  shall  keep  and  maintain  its  office  in  the  city 
of  Columbus,  and  shall  provide  a  suitable  room  or  rooms,  necessary  office 
furniture,  supphes,  books,  periodicals  and  maps.  All  necessary  expenses 
shall  be  audited  and  paid  out  of  the  state  treasury.  The  board  may 
hold  sessions  at  any  place  within  the  state. 

Section  7.  The  board  may  employ  a  secretary,  actuary,  accountants, 
inspectors,  examiners,  experts,  clerks,  stenographers  and  other  assistants, 
and  fix  their  compensation.  Such  employments  and  compensation  shall 
be  first  approved  by  the  governor,  and  shall  be  paid  out  of  the  state  treas- 
ury. The  members  of  the  board,  actuaries,  accountants,  inspectors, 
examiners,  experts,  clerks,  stenographers  and  other  assistants  that  may 
be  employed  shall  be  entitled  to  receive  from  the  state  treasury  their 
actual  and  necessary  expenses  while  traveling  in  the  business  of  the  board. 
Such  expenses  shall  be  itemized  and  sworn  to  by  the  person  who  incurred 
the  expense,  and  allowed  by  the  board. 

Section  8,  The  board  shall  adopt  reasonable  and  proper  mles  to 
govern  its  procedure,  regulate  and  provide  for  the  kind  and  character  of 
notices,  and  the  services  thereof,  in  cases  of  accident  and  injury  to  em- 
ployes, the  nature  and  extent  of  the  proofs  and  evidence,  and  the  method 
of  taking  and  furnishing  the  same,  to  establish  the  right  to  benefits  of 


262 

compensation  from  the  state  insurance  fund,  hereinafter  provided  for, 
the  forms  of  appHcation  of  those  claiming  to  be  entitled  to  benefits  or 
compensation  therefrom,  the  method  of  making  investigations,  physical 
examinations  and  inspections,  and  prescribe  the  time  within  which  adju- 
dications and  awards  shall  be  made. 

Section  9.  Every  employer  shall  furnish  the  board,  upon  request,  all 
information  required  by  it  to  carry  out  the  purposes  of  this  act.  The 
board  or  any  member  thereof,  or  any  person  employed  by  the  board  for 
that  purpose,  shall  have  the  right  to  examine  under  oath  any  employer 
or  officer,  agent  or  employe  thereof. 

Section  10.  Every  employer  receiving  from  the  board  any  blank 
with  directions  to  fill  the  same,  shall  cause  the  same  to  be  properly  filled 
out  as  to  answer  fully  and  correctly  all  questions  therein  propounded, 
and  if  unable  to  do  so  shall  give  good  and  sufficient  reasons  for  such  fail- 
ure. Answers  to  such  questions  shall  be  verified  under  oath  and  returned 
to  the  board  within  the  period  fixed  by  the  board  for  such  return. 

Section  11.  Each  member  of  the  board,  the  secretary  and  every 
inspector  or  examiner  appointed  by  the  board  shall,  for  the  purposes 
contemplated  by  this  act,  have  power  to  administer  oaths,  certify  to 
official  acts,  take  depositions,  issue  subpoenas,  compel  the  attendance  of 
witnesses  and  the  production  of  boolcs,  accounts,  papers,  records,  docu- 
ments and  testimony. 

Section  12.  In  case  of  disobedience  of  any  person  to  comply  with 
the  order  of  the  board,  or  subpoena  issued  by  it  as  one  of  its  inspectors, 
or  examiners,  or  on  the  refusal  of  a  witness  to  testify  to  any  matter  re- 
garding which  he  may  be  lawfully  interrogated,  or  refuse  to  permit  an 
inspection  as  aforesaid,  the  probate  judge  of  the  countj^  in  which  the 
person  resides,  on  application  of  any  member  of  the  board,  or  any  in- 
spector or  examiner  appointed  by  it,  shall  compel  obedience  by  attach- 
ment proceedings  as  for  contempt,  as  in  the  case  of  disobedience  of  the 
requirements  of  subpoena  issued  from  such  court  on  a  refusal  to  testify 
therein. 

Section  13.  Each  officer  who  serv^es  such  subpoena  shall  receive  the 
same  fees  as  a  sheriff,  and  each  witness  who  appears,  in  obedience  to  a 
subpoena,  before  the  board  or  an  inspector  or  examiner,  shall  receive  for 
his  attendance  the  fees  and  mileage  provided  for  witnesses  in  civil  cases 
in  courts  of  common  pleas,  which  shall  be  audited  and  paid  from  the  state 
treasury  in  the  same  manner  as  other  expenses  are  audited  and  paid, 
upon  the  presentation  of  proper  vouchers  approved  by  any  two  members 
of  the  board.  No  witness  subpoenaed  at  the  instance  of  a  party  other 
than  the  board  or  an  inspector  shall  be  entitled  to  compensation  from 
the  state  treasury  unless  the  board  shall  certify  that  his  testimony  was 
material  to  the  matter  investigated. 

Section  14.  In  an  investigation,  the  board  may  cause  depositions  of 
witnesses  residing  within  or  without  the  state  to  be  taken  in  the  manner 
prescribed  by  the  law  for  like  depositions  in  civil  actions  in  the  court  of 


;.  263 

Section  15.  A  transcribed  copy  of  the  evidence  and  proceedings,  or 
any  specific  part  thereof,  or  any  investigation,  by  a  stenographer  appointed 
by  the  board,  being  certified  by  such  stenographer  to  be  a  true  and  correct 
transcript  of  the  testimony  on  the  investigation,  or  of  a  particular  wit- 
ness, or  of  a  specific  part  thereof,  carefully  compared  by  him  with  his 
original  notes,  and  to  be  a  correct  statement  of  the  evidence  and  proceed- 
ings had  on  such  investigation  so  purporting  to  be  taken  and  subscribed, 
may  be  received  in  evidence  by  the  board  with  the  same  effect  as  if  such 
stenographer  were  present  and  testified  to  the  facts  so  certified.  A  copy 
of  such  transcript  shall  be  furnished  on  demand  to  any  party  upon  the 
payment  of  the  fee  therefor,  as  provided  for  transcript  in  courts  of  com- 
mon pleas. 

Section  16.  The  board  shall  prepare  and  furnish  blank  forms,  and 
provide  in  its  rules  for  their  distribution  so  that  the  same  may  be  readily 
available,  of  application  for  benefits  or  compensation  from  the  state  in- 
surance fund,  notices  to  employers,  proofs  of  injury  or  death,  of  medical 
attendance,  of  employment  and  wage  earnings,  and  such  other  blanks 
as  may  be  deemed  proper  and  advisable,  and  it  shall  be  the  duty  of  in- 
sured employers  to  constantly  keep  on  hand  sufficient  supply  of  such 
blanks. 

Section  17.  The  state  liability  board  of  awards  shall  classify  employ- 
ments with  respect  to  their  degree  of  hazard,  and  determine  the  risks  of 
the  different  classes  and  fix  the  rates  of  premium  of  the  risks  of  the  same, 
based  upon  the  total  pay  roll  and  number  oi  employes  in  each  of  said 
classes  of  employment,  sufficiently  large  to  provide  an  adequate  fund 
for  the  compensation  provided  for  in  this  act,  and  to  create  a  surplus 
sufficiently  large  to  guarantee  a  state  insurance  fund  from  year  to  year. 

Section  18.  The  state  liability  board  of  awards  shall  establish  a 
state  insurance  fund  from  premiums  paid  thereto  by  employers  and  em- 
ployes as  herein  provided,  according  to  the  rates  of  risk  in  the  classes 
established  by  it,  as  herein  provided,  for  the  benefit  of  employes  of  em- 
ployers that  have  paid  the  premium  applicable  to  the  classes  to  which 
they  belong  and  for  the  benefit  of  the  dependents  of  such  employes,  and 
shall  adopt  rules  and  regulations  with  respect  to  the  collection,  mainte- 
nance and  disbursement  of  said  fund. 

Section  19.  The  treasurer  of  state  shall  be  the  custodian  of  the  state 
insurance  fund,  and  all  disbursement  therefrom  shall  be  paid  by  him, 
but  upon  vouchers  signed  by  any  two  members  of  the  state  liability  board 
of  awards. 

Section  20.  The  treasurer  of  state  shall  give  a  separate  and  additional 
bond,  in  such  amount  as  may  be  fixed  by  the  governor,  and  with  sureties 
to  his  approval,  conditioned  for  the  faithful  performance  of  his  duties 
as  custodian  of  the  state  insurance  fund  herein  .provided  for. 

Section  20-1.  Any  employer  who  employs  five  or  more  workmen  or 
operatives  regularly  in  the  same  business,  or  in  or  about  the  same  estab- 
lishment who  shall  pay  into  the  state  insurance  fund  the  premiums  pro- 


264 

vided  by  this  act,  shall  not  be  liable  to  respond  in  damages  at  common 
law  or  by  statute,  save  as  hereinafter  provided,  for  injuries  or  death  of 
any  such  employe,  wherever  occurring,  during  the  period  covered  by  such 
premiums,  provided  the  injured  employe  has  remained  in  his  service  with 
notice  that  his  employer  has  paid  into  the  state  insurance  fund  the  pre- 
miums provided  by  this  act;  the  continuation  in  the  service  of  such  em- 
ployer with  such  notice,  shall  be  deemed  a  waiver  by  the  employe  of  his 
right  of  action  as  aforesaid. 

Each  employer  paying  the  premiums  provided  by  this  act  into  the  state 
insurance  fund  shall  post  in  conspicuous  places  about  his  place  or  places 
of  business  typewritten  or  printed  notices  stating  the  fact  that  he  has 
made  such  payment;  and  the  same,  when  so  posted,  shall  constitute 
sufficient  notice  to  his  employes  of  the  fact  that  he  has  made  such  pay- 
ment; and  of  any  subsequent  pajonents  he  may  make  after  such  notices 
have  been  posted. 

Section  20-2.  For  the  purpose  of  creating  such  state  insurance  fund, 
each  employer  who  employs  five  or  more  workmen  or  operatives  regu- 
larly in  the  same  business,  or  in  or  about  the  same  estabhshment,  and  his 
employes  in  this  state,  having  elected  to  accept  the  provisions  of  this 
act,  shall  pay,  on  or  before  January  1,  1912,  and  semi-annually  thereafter, 
the  premiums  of  liability  risk  in  the  classes  of  employment  as  may  be 
determined  and  pubhshed  by  the  state  liabihty  board  of  awards.  The 
said  employers  for  themselves  and  their  employes  shall  make  such  pay- 
ments to  the  state  treasurer  of  Ohio,  who  shall  receive  and  place  the  same 
to  the  credit  of  such  state  insurance  fund.  The  premiums  provided  for 
in  this  act  shall  be  paid  by  the  employer  and  employes  in  the  following 
proportions,  to- wit:  Ninety  per  cent,  of  the  premium  shall  be  paid  by 
the  employer  and  ten  per  cent,  by  the  employes.  Each  employer  is 
authorized  to  deduct  from  the  pay  roll  of  his  employes  ten  per  cent,  of 
the  said  premiums  for  any  premium  period  in  proportion  to  the  pay  roll 
of  such  employes;  no  deduction  shall  be  made  except  for  that  portion  of 
the  premium  period  antedating  such  pay  roll.  Each  employer  shall  give 
a  receipt  to  each  employe  showing  the  amount  which  has  been  deducted 
and  paid  into  the  state  insurance  fund. 

Section  21.  The  state  Uability  board  of  awards  shall  disburse  the 
state  insurance  fund  to  such  employes  of  employers  as  have  paid  into 
said  fund  the  premiums  applicable  to  the  classes  to  which  they  belong, 
that  have  been  injured  in  the  course  of  their  employment,  wheresoever 
such  injury  has  occurred,  and  which  have  not  been  purposely  self  inflicted, 
or  to  their  dependents  in  case  death  has  ensued. 

Section  21-1.  All  employers  who  employ  five  or  more  workmen  or 
operatives  regularly  in  the  same  business,  or  in  or  about  the  same  estab- 
lishment who  shall  not  pay  into  the  state  insurance  fund  the  premiums 
provided  by  this  act,  shall  be  liable  to  their  employes  for  damages  suffered 
by  reason  of  personal  injuries  sustained  in  the  course  of  emplojnnent 
caused  by  the  wrongful  act,  neglect  or  default  of  the  employer,  or  any 


I 


265 

of  the  employer's  officers,  agents  or  employes,  and  also  to  the  personal 
representatives  of  such  emplo3'-es  where  death  results  from  such  injuries 
and  in  such  action  the  defendant  shall  not  avail  himself  or  itseK  of  the 
following  common  law  defenses: 

The  defense  X)f  the  fellow-servant  rule,  the  defense  of  the  assumption 
of  risk,  or  the  defense  of  contributory  negligence. 

Section  21-2.  But  where  a  personal  injury  is  suffered  by  an  employe, 
or  when  death  results  to  an  employe  from  personal  injuries  while  in  the 
employ  of  an  employer  in  the  course  of  employment,  and  such  employer 
has  paid  into  the  state  insurance  fund  the  premium  provided  for  in  this 
act,  and  in  case  such  injury  has  arisen  from  the  wilful  act  of  such  employer 
or  any  of  such  employer's  officers  or  agents  or  from  the  failure  of  such 
employer,  or  any  of  such  employer's  officers  or  agents,  to  comply  with 
any  municipal  ordinance  or  lawful  order  of  any  duly  authorized  officer, 
or  any  statute  for  the  protection  of  the  life  or  safety  of  employes,  then 
in  such  event,  nothing  in  this  act  contained  shall  affect  the  civil  liability 
of  such  employer,  but  such  injured  employe,  or  his  legal  representative 
in  case  death  results  from  the  injury,  may,  at  his  option,  either  claim 
compensation  under  this  act  or  institute  proceedings  in  the  courts  for 
his  damage  on  account  of  such  injury,  and  such  employer  shall  not  be 
liable  for  any  injury  to  any  employe,  or  to  his  legal  representative  in 
case  death  results,  except  as  provided  in  this  act. 

Every  employe,  or  legal  representative  in  case  death  results,  who  makes 
application  for  an  award  from  the  state  liability  board  of  awards,  waives 
his  right  to  exercise  his  option  to  institute  proceedings  in  any  court. 
Every  employe  or  his  legal  representative  in  case  death  results,  who  exer- 
cises his  option  to  institute  proceedings  in  court  as  provided  in  section 
21-2,  waives  his  right  to  any  award;  except  as  provided  in  section  36  of 
this  act. 

Section  23.  The  board  shall  disburse  and  pay  from  the  fund,  for 
such  injury,  to  such  employes,  such  amounts  for  medical,  nurse  and  hos- 
pital services  and  medicines,  as  it  may  deem  proper,  not,  however,  in 
any  case,  to  exceed  the  sum  of  two  hundred  dollars,  in  addition  to  such 
award  to  such  employe. 

Section  24.  In  case  death  ensues  from  the  injury  reasonable  funeral 
expenses,  not  to  exceed  one  hundred  and  fifty  dollars,  shall  be  paid  from 
the  fund,  in  addition  to  such  award  to  such  employe. 

Section  25.  No  benefit  shall  be  allowed  for  the  first  week  after  the 
injury  is  received,  except  the  disbursement  provided  for  in  the  next  two 
preceding  sections. 

Section  26.  In  case  of  temporary  or  partial  disability,  the  employe 
shall  receive  sixty-six  and  two- thirds  per  cent,  of  the  impairment  of  his 
earning  capacity  during  the  continuance  thereof,  not  to  exceed  a  maxi- 
mum of  twelve  dollars  per  week,  and  not  less  than  a  minimum  of  five 
dollars  per  week,  if  the  employe's  wages  were  less  than  five  dollars  per 
week,  then  he  shall  receive  his  full  wages;   but  not  to  continue  for  more 


266 

than  six  years  from  the  date  of  the  injury,  nor  to  exceed  three  thousand 
four  hundi'ed  dollars  in  amount  from  that  injury. 

Section  27.  In  case  of  permanent  total  disability  the  award  shall  be 
66|%  of  the  average  weekly  wage,  and  shall  continue  until  the  death  of 
such  person  so  totally  disabled,  but  not  to  exceed  a  maximum  of  twelve 
dollars  per  week,  and  not  less  than  a  minimum  of  five  dollars  per  week, 
if  the  employe's  wages  were  less  than  five  dollars  per  week,  then  he  shall 
receive  his  full  wages. 

Section  28.  In  case  the  injury  causes  death  within  the  period  of 
two  years  the  benefits  shall  be  in  the  amounts  and  to  the  persons  follow- 
ing: 

1.  If  there  be  no  dependents,  the  disbursements  from  the  insurance 
fund  shall  be  limited  to  the  expense  provided  for  in  sections  23  and  24. 

2.  If  there  are  wholly  dependent  persons  at  the  time  of  the  death,  the 
payment  shall  be  sixty-six  and  two-thirds  per  cent,  of  the  average  weekly 
wage  and  to  continue  for  the  remainder  of  the  period  between  the  date 
of  the  death  and  six  years  after  the  date  of  the  injury,  and  not  to  amount 
to  more  than  a  maximum  of  thirty-four  hundred  dollars,  nor  less  than  a 
minimum  of  one  thousand  five  hundred  dollars. 

3.  If  there  are  partly  dependent  persons  at  the  time  of  the  death,  the 
payment  shall  be  sixty-six  and  two-thirds  per  cent,  of  the  average  weekly 
wage  and  to  continue  for  all  or  such  portion  of  the  period  of  six  years  after 
the  date  of  the  injury,  as  the  board  in  each  case  may  determine,  and  not 
to  amount  to  more  than  a  maximum  of  thirty-four  hundred  dollars. 

Section  29.  The  benefits,  in  case  of  death,  shall  be  paid  to  such  one 
or  more  of  the  dependents  of  the  decedent,  for  the  benefit  of  all  the  depend- 
ents, as  may  be  determined  by  the  board,  which  may  apportion  the  bene- 
fits among  the  dependents  in  such  manner  as  it  may  deem  just  and  equi- 
table. Payment  to  a  dependent  subsequent  in  right  may  be  made,  if  the 
board  deem  proper,  and  shall  operate  to  discharge  all  other  claims  therefor. 

Section  30.  The  dependent  or  person  to  whom  benefits  are  paid 
shall  apply  the  same  to  the  use  of  the  several  beneficiaries  thereof  accord- 
ing to  their  respective  claims  upon  the  decedent  for  support,  in  compliance 
with  the  finding  and  direction  of  the  board. 

Section  31.  The  average  weekly  wage  of  the  injured  person  at  the 
time  of  the  injury  shall  be  taken  as  the  basis  upon  which  to  compute  the 
benefits. 

Section  32.  If  it  is  established  that  the  injured  employe  was  of  such 
age  and  experience  when  injured  as  that  under  natural  conditions  his 
wages  would  be  expected  to  increase,  the  fact  may  be  considered  in  arriv- 
ing at  his  average  weekly  wage. 

Section  33,  The  power  and  jurisdiction  of  the  board  over  each  case 
shall  be  continuing,  and  it  may  from  time  to  time  make  such  modifica- 
tion or  change  with  respect  to  former  findings  or  orders  with  respect 
thereto,  as,  in  its  opinion,  may  be  justified. 

Section  34.    The  board,  under  special  circumstances,  and  when  the 


267 

same  is  deemed  advisable,  may  commute  periodical  benefits  to  one  or 
more  lump  sum  payments. 

Section  35.  Benefits  before  payment  shall  be  exempt  from  all  claims 
or  creditors  and  from  any  attachment  or  execution,  and  shall  be  paid 
only  to  such  employes  or  their  dependents. 

Section  36.  The  board  shall  have  full  power  and  authority  to  hear 
and  determine  all  questions  within  its  jurisdiction,  and  its  decision  thereon 
shall  be  final. 

Provided,  however,  in  case  the  final  action  of  such  board  denies  the 
right  of  the  claimant  to  participate  at  all  in  such  fund  on  the  ground  that 
the  injury  was  self-inflicted  or  on  the  ground  that  the  accident  did  not 
arise  in  the  course  of  employment,  or  upon  any  other  ground  going  to 
the  basis  of  the  claimant's  right,  then  the  claimant  within  thirty  (30) 
days  after  the  notice  of  the  final  action  of  such  board  may,  by  filing  his 
appeal  in  the  common  pleas  court  of  the  county  wherein  the  injury  was 
inflicted,  be  entitled  to  a  trial  in  the  ordinary  way,  and  be  entitled  to  a 
jury  if  he  demands  it.  In  such  a  proceeding,  the  prosecuting  attorney 
of  the  county,  without  additional  compensation,  shall  represent  the  state 
liability  board  of  awards,  and  he  shall  be  notified  by  the  clerk  forthwith 
of  the  filing  of  such  appeal. 

Within  thirty  days  after  filing  his  appeal,  the  appellant  shall  file  a 
petition  in  the  ordinary  form  against  such  board  as  defendant  and  fur- 
ther pleadings  shall  be  had  in  said  cause  according  to  the  rules  of  civil 
procedure,  and  the  court,  or  the  jury,  under  the  instructions  of  the  court, 
if  a  jury  is  demanded,  shall  determine  the  right  of  the  claimant;  and,  if 
they  determine  the  right  in  his  favor,  shall  fix  his  compensation  within 
the  limits  and  under  the  rules  prescribed  in  this  act;  and  any  final  judg- 
ment so  obtained  shall  be  paid  by  the  state  liability  board  of  awards  out 
of  the  state  insurance  fund  in  the  same  maimer  as  such  awards  are  paid 
by  such  board. 

The  costs  of  such  proceeding,  including  a  reasonable  attorney's  fee  to 
the  claimant's  attorney  to  be  fixed  by  the  trial  judge,  shall  be  taxed  against 
the  unsuccessful  party.  Either  party  shall  have  the  right  to  prosecute 
error  as  in  the  ordinary  civil  cases. 

Section  36-1.  Such  board  shall  not  be  bound  by  the  usual  common 
law  or  statutory  rules  of  evidence  or  by  any  technical  or  formal  rules  of 
procedure,  other  than  as  herein  provided;  but  may  make  the  investiga- 
tion in  such  manner  as  in  their  judgment,  is  best  calculated  to  ascertain 
the  substantial  rights  of  the  parties  and  to  carry  out  justly  the  spirit  of 
this  act. 

Section  37.  The  board  may  make  necessary  expenditures  to  obtain 
statistical  and  other  information  to  establish  the  classes  provided  for  in 
section  17.  The  salaries  and  compensation  of  the  secretary,  and  all 
actuaries,  accountants,  inspectors,  examiners,  experts,  clerks  and  other 
assistants,  and  all  other  expenses  of  the  board  herein  authorized  includ- 
ing the  premium  to  be  paid  by  the  state  treasurer  for  the  bond  to  be  fur- 


268 

nished  by  him,  shall  be  paid  out  of  the  state  treasury  upon  vouchers, 
signed  by  two  of  the  members  of  such  board,  presented  to  the  auditor  of 
state,  who  shall  issue  his  warrant  therefor  as  in  other  cases. 

Section  38.  No  provision  of  this  act  relating  to  the  amount  of  com- 
pensation shall  be  considered  by,  or  called  to  the  attention  of  the  jury 
on  the  trial  of  any  action  to  recover  damages  as  herein  provided. 

Section  39.  Annually  on  or  before  the  15th  day  of  November,  such 
board,  under  the  oath  of  at  least  two  of  its  members,  shall  make  a  report 
to  the  governor  which  shall  include  a  statement  of  the  number  of  awards 
made  by  it,  and  a  general  statement  of  the  causes  of  the  accidents  lead- 
ing to  the  injuries  for  which  the  awards  were  made,  a  detailed  statement 
of  the  disbursements  from  the  expense  fund,  and  the  condition  of  its 
respective  funds,  together  with  any  other  matters  which  such  board 
deems  it  proper  to  call  to  the  attention  of  the  governor,  including  any 
recommendations  it  may  have  to  make. 

Section  40.  The  expense  of  such  board  in  carrying  out  the  provisions 
of  this  act  shall  be  paid  until  January  1,  1912,  out  of  the  general  revenue 
of  the  state  not  otherwise  appropriated.  Such  expense  shall  not  exceed 
twenty-five  thousand  dollars  in  addition  to  the  salaries  of  members  of 
such  board. 

Section  41.  The  expenses  of  such  board  in  carrying  out  the  provi- 
sions of  this  act  shall  be  paid  from  January  1st,  1912,  to  January  1st, 
1913,  out  of  the  general  revenue  fund  of  the  state  not  otherwise  appro- 
priated. Such  expense  shall  not  exceed  one  hundred  thousand  dollars  in 
addition  to  the  salary  of  the  members.  Approved  June  15,  1911. 


STATE  OF  RHODE  ISLAND  AND  PROVIDENCE 

PLANTATIONS. 

Laws  of  1912,  Chapter  831. 

An  Act  relative  To  Payments  to  Employees  for  Personal  Injuries 
received  in  the  Course  of  their  Employment,  and  to  the  Pre- 
vention OF  Such  Injuries. 

It  is  enacted  hy  the  General  Assembly  as  follows: 

Article  I. 

abrogation  op  remedies  and  defenses. 

Section  1.  In  an  action  to  recover  damages  for  personal  injury  sus- 
tained by  accident  by  an  employee  arising  out  of  and  in  the  course  of 
his  employment,  or  for  death  resulting  from  personal  injury  so  sustained, 
it  shall  not  be  a  defense:  (a)  That  the  employee  was  negligent ;  (b)  That 
the  injury  was  caused  by  the  negligence  of  a  fellow  employee;  (c)  That 
the  employee  has  assumed  the  risk  of  the  injury. 

Sec.  2.    The  provisions  of  this  act  shall  not  apply  to  actions  to  recover 


269 

damages  for  personal  injuries,  or  for  death  resulting  from  personal  in- 
juries, sustained  by  employees  engaged  in  domestic  service  or  agriculture. 

Sec.  3.  The  provisions  of  this  act  shall  not  apply  to  employers  who 
employ  five  or  less  workmen  or  operatives  regularly  in  the  same  business, 
but  such  employers  may,  by  complying  with  the  provisions  of  Section  5 
of  this  article  become  subject  to  the  provisions  of  this  act. 

Sec.  4.  The  provisions  of  Section  1  of  this  article  shall  not  apply  to 
actions  to  recover  damages  for  personal  injuries,  or  for  death  resulting 
from  personal  injuries,  sustained  by  employees  of  an  employer  who  has 
elected  to  become  subject  to  the  provisions  of  this  act,  as  provided  in 
Section  5  of  this  article. 

Sec.  5.  Such  election  on  the  part  of  the  employer  shall  be  made  by 
filing  with  the  commissioner  of  industrial  statistics  a  written  statement 
to  the  effect  that  he  accepts  the  provisions  of  this  act,  and  by  giving 
reasonable  notice  of  such  election  to  his  workmen,  by  posting  and  keep- 
ing continuously  posted  copies  of  such  statement  in  conspicuous  places 
about  the  place  where  his  workmen  are  employed,  the  filing  of  which 
statement  and  the  giving  of  which  notice  shall  operate  to  subject  such 
employer  to  the  provisions  of  this  act  and  all  acts  amendatory  thereof 
for  the  term  of  one  year  from  the  date  of  the  filing  of  such  statement,  and 
thereafter,  without  further  act  on  his  part,  for  successive  terms  of  one 
year,  each,  unless  such  employer  shall,  at  least  sixty  days  prior  to  the 
expiration  of  such  first  or  any  succeeding  year,  file  with  said  commissioner 
a  notice  in  writing  to  the  effect  that  he  desires  to  withdraw  his  election 
to  be  subject  to  the  provisions  of  this  act  and  shall  give  reasonable  notice 
to  his  workmen  as  above  provided.  Blank  forms  of  election  and  with- 
drawal as  herein  provided,  shall  be  furnished  by  said  commissioner. 

Sec.  6.  An  employee  of  an  employer  who  shall  have  elected  to  become 
subject  to  the  provisions  of  this  act  as  provided  in  Section  5  of  this  article 
shall  be  held  to  have  waived  his  right  of  action  at  common  law  to  recover 
damages  for  personal  injuries,  if  he  shall  not  have  given  his  employer  at 
the  time  of  his  contract  of  hire  notice  in  writing  that  he  claimed  such 
right,  and  within  ten  days  thereafter  have  filed  a  copy  thereof  with  the 
commissioner  of  industrial  statistics,  or,  if  the  contract  of  hire  was  made 
before  the  employer  so  elected,  if  the  employee  shall  not  have  given  the 
said  notice  and  filed  the  same  with  said  commissioner  within  ten  daj'-s 
after  notice  by  the  employer,  as  above  provided,  of  such  election;  and 
such  waiver  shall  continue  in  force  for  the  term  of  one  year,  and  there- 
after without  further  act  on  his  part,  for  successive  terms  of  one  year, 
each,  unless  such  employee  shall  at  least  sixty  days  prior  to  the  expira- 
tion of  such  first  or  any  succeeding  year,  file  with  the  said  commissioner 
a  notice  in  writing  to  the  effect  that  he  desires  to  claim  his  said  right  of 
action  at  common  law  and  within  ten  days  thereafter  shall  give  notice 
thereof  to  his  emploj^er.  A  minor  working  at  an  age  legally  permitted 
under  the  laws  of  this  state  shall  be  deemed  mi  juris  for  the  purpose  of 
this  act  and  no  other  person  shall  have  any  cause  of  action  or  right  to 


270 

compensation  for  an  injury  to  such  minor  employee  except  as  expressly 
provided  in  this  act;  but  if  said  minor  shall  have  a  parent  living  or  a 
guardian,  such  parent  or  guardian,  as  the  case  may  be,  may  give  the 
notice  and  file  a  copy  of  the  same  as  herein  provided  by  this  section,  and 
such  notice  shall  bind  the  minor  in  the  same  manner  that  adult  employees 
are  bound  under  the  provisions  of  this  act.  In  case  no  such  notice  is 
given,  such  minor  shall  be  held  to  have  waived  his  right  of  action  at  com- 
mon law  to  recover  damages  for  personal  injuries.  Any  employee,  or 
the  parent  or  guardian  of  any  minor  employee,  who  has  given  notice  to 
the  employer  that  he  claimed  his  right  of  action  at  common  law  may 
waive  such  claim  by  a  notice  in  writing  which  shall  take  effect  five  days 
after  the  delivery  to  the  employer  or  his  agent. 

Sec.  7.  The  right  to  compensation  for  an  injury,  and  the  remedy 
therefor  granted  by  this  act,  shall  be  in  lieu  of  all  rights  and  remedies  as 
to  such  injury  now  existing,  either  at  common  law  or  otherwise;  and  such 
rights  and  remedies  shall  not  accrue  to  employees  entitled  to  compensa- 
tion under  this  act  while  it  is  in  effect. 

Aeticlb  II. 

PAYMENTS. 

Section  1.  If  an  employee  who  has  not  given  notice  of  his  claim  of 
common  law  rights  of  action  or  who  has  given  such  notice  and  has  waived 
the  same,  as  provided  in  Section  6  of  article  I,  receives  a  personal  injury 
by  accident  arising  out  of  and  in  the  course  of  his  employment,  he  shall 
be  paid  compensation,-  as  hereinafter  provided,  by  the  employer  who 
shall  have  elected  to  become  subject  to  the  provisions  of  this  act. 

Sec.  2.  No  compensation  shall  be  allowed  for  the  injury  or  death  of 
an  employee  where  it  is  proved  that  his  injury  or  death  was  occasioned 
by  his  wilful  intention  to  bring  about  the  injury  or  death  of  himself  or 
of  another,  or  that  the  same  resulted  from  his  intoxication  while  on  duty. 

Sec.  3.  Contingent  fees  of  attorneys  for  services  under  this  act  shall 
be  subject  to  the  approval  of  the  superior  court. 

Sec.  4.  No  compensation  except  as  provided  by  Section  12  of  this 
article  shall  be  paid  under  this  act  for  any  injm-y  which  does  not  incapaci- 
tate the  employee  for  a  period  of  at  least  two  weeks  from  earning  full 
wages,  but,  if  such  incapacity  extends  beyond  the  period  of  two  weeks, 
compensation  shall  begin  on  the  fifteenth  day  after  the  injury. 

Sec.  5.  During  the  first  two  weeks  after  the  injury  the  employer  shall 
furnish  reasonable  medical  and  hospital  services,  and  medicines  when 
they  are  needed,  the  amount  of  the  charge  for  such  services  to  be  fixed, 
in  case  of  the  failure  of  the  employer  and  employee  to  agree,  by  the  su- 
perior court. 

Sec.  6.  If  death  results  from  the  injury,  the  employer  shall  pay  the 
dependents  of  the  employee  wholly  dependent  upon  his  earnings  for  sup- 
port at  the  time  of  his  injury  a  weekly  payment  equal  to  one-half  liis 


271 

average  weekly  wages,  earnings,  or  salary,  but  not  more  than  ten  dollars  nor 
less  than  four  dollars  a  week,  for  a  period  of  three  hundred  weeks  from  the 
date  of  the  injury:  Provided,  however,  that,  if  the  dependent  of  the  em- 
ployee to  whom  the  compensation  shall  be  payable  upon  his  death  is  the 
widow  of  such  employee,  upon  her  death  the  compensation  thereafter 
payable  under  this  act  shall  be  paid  to  the  child  or  children  of  the  deceased 
employee,  including  adopted  and  step  children,  under  the  age  of  eighteen 
years,  or  over  said  age  but  physically  or  mentally  incapacitated  from 
earning,  dependent  upon  the  widow  at  the  time  of  her  death.  In  case 
there  is  more  than  one  child  thus  dependent,  the  compensation  shall  be 
divided  equally  among  them.  If  the  employee  leaves  dependents  only 
partly  dependent  upon  his  earnings  for  support  at  the  time  of  his  injury, 
the  employer  shall  pay  such  dependents  for  a  period  of  three  hundred 
weeks  from  the  date  of  the  injury  a  weekly  compensation  equal  to  the 
same  proportion  of  the  weekly  payments  herein  provided  for  the  benefit 
of  persons  wholly  dependent  as  the  amount  contributed  annually  by  the 
employee  to  such  partial  dependents  bears  to  the  annual  earnings  of  the 
deceased  at  the  time  of  injury.  When  weekly  payments  have  been  made 
to  an  injured  employee  before  his  death,  the  compensation  to  dependents 
shall  begin  from  the  date  of  the  last  of  such  payments,  but  shall  not  con- 
tinue more  than  three  hundred  weeks  from  the  date  of  the  injury:  Pro- 
vided, however,  that,  if  the  deceased  leaves  no  dependents  at  the  time  of 
the  injury,  the  employer  shall  not  be  liable  to  pay  compensation  under 
this  act  except  as  specifically  provided  in  Section  9  of  this  article. 

Sec.  7.  The  following  persons  shall  be  conclusively  presumed  to  be 
wholly  dependent  for  support  upon  a  deceased  employee: 

(a)  A  wife  upon  a  husband  with  whom  she  lives  or  upon  whom  she  is 
dependent  at  the  time  of  his  death. 

(b)  A  husband  upon  a  wife  with  whom  he  lives  or  upon  whom  he  is 
dependent  at  the  time  of  her  death. 

(c)  A  child  or  children,  including  adopted  and  step-children,  under  the 
age  of  eighteen  years,  or  over  said  age,  but  physically  or  mentally  in- 
capacitated from  earning,  upon  the  parent  with  whom  he  is  or  they  are 
living  or  upon  whom  he  or  they  are  dependent  at  the  time  of  the  death 
of  such  parent,  there  being  no  surviving  dependent  parent.  In  case  there 
is  more  than  one  child  thus  dependent,  the  compensation  hereunder  shall 
be  divided  equally  among  them. 

In  all  other  cases  questions  of  entire  or  partial  dependency  shall  be 
determined  in  accordance  with  the  fact  as  the  fact  may  have  been  at 
the  time  of  the  injury.  In  such  other  cases,  if  there  is  more  than  one 
person  wholly  dependent,  the  compensation  shall  be  divided  equally 
among  them,  and  persons  partly  dependent,  if  any,  shall  receive  no  part 
thereof  during  the  period  in  which  compensation  is  paid  to  persons  wholly 
dependent.  If  there  is  no  one  wholly  dependent  and  more  than  one  per- 
son partly  dependent,  the  compensation  shall  be  divided  among  them 
according  to  the  relative  extent  of  their  dependency. 


272 

Sec.  8.  No  person  shall  be  considered  a  dependent  unless  he  is  a  mem- 
ber of  the  employee's  family  or  next  of  kin,  wholly  or  partly  dependent 
upon  the  wages,  earnings  or  salary  of  the  employee  for  support  at  the 
time  of  the  injury. 

Sec.  9.  If  the  employee  dies  as  a  result  of  the  injury  leaving  no  de- 
pendents at  the  time  of  the  injury,  the  employer  shall  pay,  in  addition 
to  any  compensation  provided  for  in  this  act  the  reasonable  expense  of 
his  last  sickness  and  burial,  which  shall  not  exceed  two  hundred  dollars. 

Sec.  10.  While  the  incapacity  for  work  resulting  from  the  injury  is 
total,  the  employer  shall  pay  the  injured  employee  a  weekly  compensa- 
tion equal  to  one-half  his  average  weekly  wages,  earnings  or  salary,  but 
not  more  than  ten  dollars  nor  less  than  four  dollars  a  week;  and  in  no 
case  shall  the  period  covered  by  such  compensation  be  greater  than  five 
hundred  weeks  from  the  date  of  the  injury.  In  the  following  cases  it 
shall,  for  the  purposes  of  this  section,  be  conclusively  presumed  that  the 
injury  resulted  in  permanent  total  disability,  to  wit:  The  total  and  ir- 
recoverable loss  of  sight  in  both  eyes,  the  loss  of  both  feet  at  or  above  the 
ankle,  the  loss  of  both  hands  at  or  above  the  wrist,  the  loss  of  one  hand 
and  one  foot,  an  injury  to  the  spine  resulting  in  permanent  and  complete 
paralysis  of  the  legs  or  arms,  and  an  injury  to  the  skull  resulting  in  incur- 
able imbecility  or  insanity. 

Sec.  11.  While  the  incapacity  for  work  resulting  from  the  injury  is 
partial,  the  employer  shall  pay  the  injured  employee  a  weekly  compensa- 
tion equal  to  one-half  the  difference  between  his  average  weekly  wages, 
earnings,  or  salary,  before  the  injury  and  the  average  weekly  wages,  earn- 
ings or  salary  which  he  is  able  to  earn  thereafter,  but  not  more  than  ten 
dollars  a  week;  and  in  no  case  shall  the  period  covered  by  such  compensa- 
tion be  greater  than  three  hundred  weeks  from  the  date  of  the  injury. 

Sec.  12.  In  case  of  the  following  specified  injuries  the  amounts  named 
in  this  section  shall  be  paid  in  addition  to  all  other  compensation  provided 
for  in  this  act: 

(a)  For  the  loss  by  severance  of  both  hands  at  or  above  the  wrist,  or 
both  feet  at  or  above  the  ankle,  or  the  loss  of  one  hand  and  one  foot,  or 
the  entire  and  irrecoverable  loss  of  the  sight  of  both  eyes,  one-half  of  the 
average  weekly  wages,  earnings,  or  salary  of  the  injured  person,  but  not 
more  than  ten  dollars  nor  less  than  four  dollars  a  week,  for  a  period  of 
one  hundred  weeks. 

(b)  For  the  loss  by  severance  of  either  hand  at  or  above  the  wrist,  or 
either  foot  at  or  above  the  ankle,  or  the  entire  and  irrecoverable  loss  of 
the  sight  of  either  eye,  one-half  the  average  weekly  wages,  earnings,  or 
salary  of  the  injured  person,  but  not  more  than  ten  dollars  nor  less  than 
four  dollars  a  week,  for  a  period  of  fifty  weeks. 

(c)  For  the  loss  by  severance  at  or  above  the  second  joint  of  two  or 
more  fingers,  including  thumbs,  or  toes,  one-half  the  average  weekly 
wages,  earnings,  or  salary  of  the  injured  person,  but  not  more  than  ten 
dollars  nor  less  than  four  dollars  a  week,  for  a  period  of  twenty-five  weeks. 


273 

(d)  For  the  loss  by  severance  of  at  least  one  phalange  of  a  finger,  thumb, 
or  toe,  one-half  the  average  weekly  wages,  earnings,  or  salary  of  the  in- 
jured'person,  but  not  more  than  ten  dollars  nor  less  than  four  dollars  a 
week,  for  a  period  of  twelve  weeks. 

Sec.  13.  The  "average  weekly  wages,  earnings,  or  salary"  of  an  in- 
jured employee  shall  be  computed  as  follows: 

(a)  If  the  injured  employee  has  worked  in  the  same  employment  in 
which  he  was  working  at  the  time  of  the  accident,  whether  for  the  same 
employer  or  not,  during  substantially  the  whole  of  the  year  immediately 
preceding  his  injury,  his  "average  weekly  wages"  shall  be  three  hundred 
times  the  average  daily  wages,  earnings,  or  salary  which  he  has  earned 
in  such  employment  during  the  days  when  so  employed  and  working  the 
number  of  hours  constituting  a  full  working  day  in  such  emplojanent, 
divided  by  fifty-two.  But  where  the  employee  is  employed  concurrently 
by  two  or  more  employers,  for  one  of  whom  he  works  at  one  time  and 
for  another  of  whom  he  works  at  another  time,  his  "average  weekly 
wages"  shall  be  computed  as  if  the  wages,  earnings,  or  salary  received  by 
him  from  all  such  employers  were  wages,  earnings,  or  salary  earned  in  the 
employment  of  the  employer  for  whom  he  was  working  at  the  time  of 
the  accident. 

(b)  If  the  injured  employee  has  not  so  worked  in  such  emplojnnent 
during  substantially  the  whole  of  such  immediately  preceding  year,  his 
"average  weekly  wages"  shall  be  three  hundred  times  the  average  daily 
wages,  earnings,  or  salary  which  an  employee  of  the  same  class  working 
substantially  the  whole  of  such  immediately  preceding  year  in  the  same 
or  a  similar  employment,  in  the  same  or  a  neighboring  place,  has  earned 
in  such  employment  during  the  days  when  so  employed  and  working  the 
number  of  hours  constituting  a  full  working  day  in  such  employment 
divided  by  fifty-two. 

(c)  In  cases  where  the  foregoing  methods  of  arriving  at  the  "average 
weekly  wages,  earnings,  or  salary"  of  the  injured  employee  cannot  rea- 
sonably and  fairly  be  applied,  such  "average  weekly  wages,  earnings,  or 
salary"  shall  be  taken  at  such  sum  as,  having  regard  to  the  previous 
wages,  earnings,  or  salary  of  the  injured  employee,  and  of  other  employees 
of  the  same  or  most  similar  class,  working  in  the  same  or  most  similar 
employment  in  the  same  or  a  neighboring  locality,  shall  reasonably  rep- 
resent the  weekly  earning  capacity  of  the  injured  employee  at  the  time 
of  the  accident  in  the  employment  in  which  he  was  working  at  such  time. 

(d)  Where  the  employer  has  been  accustomed  to  pay  to  the  employee 
a  sum  to  cover  any  special  expense  incurred  by  said  employee  by  the 
nature  of  his  employment,  the  sum  so  paid  shall  not  be  reckoned  as  part 
of  the  employee's  wages,  earnings,  or  salary. 

(e)  The  fact  that  an  employee  has  suffered  a  previous  injury,  or  re- 
ceived compensation  therefor,  shall  not  preclude  compensation  for  a  later 
injury  or  for  death;  but  in  determining  the  compensation  for  the  later 
injury  or  death,  his  "average  weekly  wages"  shall  be  such  sum  as  will 


274 

reasonably  represent  his  weekly  earning  capacity  at  the  time  of  the  later 
injury,  in  the  employment  in  which  he  was  working  at  such  time,  and  shall 
be  arrived  at  according  to,  and  subject  to  the  limitations  of,  the  previous 
provisions  of  this  section. 

Sec.  14.  No  savings  or  insurance  of  the  injured  employee,  independent 
of  this  act,  shall  be  taken  into  consideration  in  determining  the  compensa- 
tion to  be  paid  hereunder,  nor  shall  benefits  derived  from  any  other  source 
than  the  employer  be  considered  in  fixing  the  compensation  under  this 
act. 

Sec.  15.  The  compensation  payable  under  this  act  in  case  of  the 
death  of  the  injured  employee  shall  be  paid  to  his  legal  representatives; 
or,  if  he  has  no  legal  representative,  to  his  dependents  entitled  thereto, 
or,  if  he  leaves  no  such  dependents,  to  the  person  to  whom  the  expenses 
for  the  burial  and  last  sickness  are  due.  If  the  payment  is  made  to  the 
legal  representative  of  the  deceased  employee,  it  shall  be  paid  by  him  to 
the  dependents  or  other  persons  entitled  thereto  under  this  act.  All  pay- 
ments of  compensation  under  this  act  shall  cease  upon  the  death  of  the 
employee  from  a  cause  other  than  or  not  induced  by  the  injury  for  which, 
he  is  receiving  compensation. 

Sec.  16.  In  case  an  injured  employee  is  mentally  incompetent,  or, 
where  death  results  from  the  injury,  in  case  any  of  his  dependents  entitled 
to  compensation  hereunder  are  mentally  incompetent  or  minors  at  the 
time  when  any  right,  privilege  or  election  accrues  to  him  or  them  under 
this  act,  his  conservator,  guardian,  or  next  friend  may,  in  his  behalf, 
claim  and  exercise  such  right,  privilege,  or  election,  and  no  limitation  of 
time  in  this  act  provided  shall  run  so  long  as  such  incompetent  or  minor 
has  no  conservator  or  guardian. 

Sec.  17.  No  proceedings  for  compensation  for  an  injury  under  this 
act  shall  be  maintained  unless  a  notice  of  the  injury  shall  have  been  given 
to  the  employer  within  thirty  days  after  the  happening  thereof :  and  unless 
the  claim  for  compensation  with  respect  to  such  injury  shall  have  been 
made  within  one  year  after  the  occurrence  of  the  same,  or,  in  case  of  the 
death  of  the  employee,  or  in  the  event  of  his  physical  or  mental  incapacity, 
within  one  year  after  death  or  the  removal  of  such  physical  or  mental 
incapacity. 

Sec.  18.  Such  notice  shall  be  in  writing  and  shall  state  in  ordinary 
language  the  nature,  time,  place  and  cause  of  the  injury,  and  the  name 
and  address  of  the  person  injured  and  shall  be  signed  by  the  person  injured, 
or  by  a  person  in  his  behalf,  or,  in  the  event  of  his  death,  by  his  legal 
representative,  or  by  a  dependent,  or  by  a  person  in  behalf  of  either. 

Sec.  19.  Such  notice  shall  be  served  upon  the  employer,  or  upon  one 
employer,  if  there  are  more  employers  than  one,  or,  if  the  employer  is  a 
corporation,  upon  any  officer  or  agent  upon  whom  process  may  be  served, 
by  delivering  the  same  to  the  person  on  whom  it  is  to  be  served,  or  by 
leaving  it  at  his  last  known  residence  or  place  of  business,  or  by  sending 
it  by  registered  mail  addressed  to  the  person  to  be  served,  or,  in  the  case 


275 

of  a  corporation,  to  the  corporation  itself,  at  his  or  its  last  known  resi- 
dence or  place  of  business;  and  such  mailing  of  the  notice  shall  constitute 
completed  service. 

Sec.  20.  A  notice  given  under  the  provisions  of  this  act  shall  not  be 
held  invalid  or  insufficient  by  reason  of  any  inaccuracy  in  stating  the 
nature,  time,  place  or  cause  of  the  injury,  or  the  name  and  address  of 
the  person  injured,  unless  it  is  shown  that  it  was  the  intention  to  mislead 
and  the  employer  was  in  fact  misled  thereby.  Want  of  notice  shall  not 
be  a  bar  to  proceedings  under  this  act,  if  it  be  shown  that  the  employer 
or  his  agent  had  knowledge  of  the  injury,  or  that  failure  to  give  such 
notice  was  due  to  accident,  mistake  or  unforeseen  cause. 

Sec.  21.  The  employee  shall,  after  an  injury,  at  reasonable  times  dur- 
ing the  continuance  of  his  disability,  if  so  requested  by  his  employer,  sub- 
mit himself  to  an  examination  by  a  physician  or  surgeon  authorized  to 
practice  medicine  under  the  laws  of  the  state,  furnished  and  paid  for  by 
the  employer.  The  employee  shall  have  the  right  to  have  a  physician, 
provided  and  paid  for  by  himself,  present  at  such  examination. 

Any  justice  of  the  superior  court  may,  at  any  time  after  an  injury,  on 
the  petition  of  the  employer  or  employee,  appoint  a  competent  and  im- 
partial physician  or  surgeon  to  act  as  a  medical  examiner,  and  the  rea- 
sonable fees  of  such  medical  examiner  as  fixed  by  the  justice  appointing 
him  shall  be  paid  by  the  party  moving  for  such  appointment. 

Such  medical  examiner  being  first  duly  sworn  to  the  faithful  perform- 
ance of  his  duties  before  the  justice  appointing  him  or  clerk  of  the  court 
shall  thereupon,  and  as  often  as  necessary,  examine  such  injured  em- 
ployee in  order  to  determine  the  nature,  extent  and  probable  duration  of 
the  injury.  Such  medical  examiner  shall  file  a  report  of  every  examination 
made  of  such  employee  in  the  office  of  the  clerk  of  the  superior  court 
having  jurisdiction  of  the  matter  as  provided  in  Section  16  of  Article  III 
of  this  act,  and  such  report  shall  be  produced  in  evidence  in  any  hearing 
or  proceeding  to  determine  the  amount  of  compensation  due  such  employee 
under  the  provisions  of  this  act.  If  such  employee  refuses  to  submit 
himself  for  any  examination  provided  for  in  this  act,  or  in  any  way  ob- 
structs any  such  examination,  his  rights  to  compensation  shall  be  sus- 
pended and  his  compensation  during  such  period  of  suspension  may  be 
forfeited. 

Sec.  22.  No  agreement  by  an  employee,  except  as  provided  in  Article 
IV,  to  waive  his  rights  to  compensation  under  this  act  shall  be  valid. 

Sec.  23.  No  claims  for  compensation  under  this  act,  or  under  any 
alternative  scheme  permitted  by  Article  IV  of  this  act,  shall  be  assign- 
able, or  subject  to  attachment,  or  liable  in  any  way  for  any  debts. 

Sec.  24.  The  claim  for  compensation  under  this  act,  or  under  any 
alternative  scheme  permitted  by  Article  IV  of  this  act,  and  any  decree 
on  any  such  claim,  shall  be  entitled  to  a  preference  over  the  unsecured 
debts  of  the  employer  hereafter  contracted  to  the  same  amount  as  the 
wages  of  labor  are  now  preferred  by  the  laws  of  this  state,  but  nothing 


276 

herein  shall  be  construed  as  impairing  any  lien  which  the  employee  may 
have  acquired. 

Sec.  25.  In  case  payments  have  continued  for  not  less  than  six  months 
either  party  may,  upon  due  notice  to  the  other  party,  petition  the  su- 
perior court  for  an  order  commuting  the  future  payments  to  a  lump  sum. 
Such  petition  shall  be  considered  by  the  superior  court  and  may  be  sum- 
marily granted  where  it  is  shown  to  the  satisfaction  of  the  court  that  the 
payment  of  a  lump  sum  in  lieu  of  future  weekly  payments  will  be  for 
the  best  interest  of  the  person  or  persons  receiving  or  dependent  upon 
such  compensation,  or  that  the  continuance  of  weekly  payments  will,  as 
compared  with  lump-stun  payments,  entail  undue  expense  or  undue  hard- 
ship upon  the  employer  Uable  therefor,  or  that  the  person  entitled  to 
compensation  has  removed  or  is  about  to  remove  from  the  United  States. 
Where  the  commutation  is  ordered  the  superior  court  shall  fix  the  lump 
sum  to  be  paid  at  an  amount  which  will  equal  the  total  sum  of  the  prob- 
able future  payments,  capitalized  at  their  present  value  upon  the  basis 
of  interest  calculated  at  five  per  centum  per  annum  with  annual  rests. 
Upon  paying  such  amount  the  employer  shall  be  discharged  from  all 
further  liability  on  account  of  the  injury  or  death,  and  be  entitled  to  a 
duly  executed  release,  upon  filing  which,  or  other  due  proof  of  payment, 
the  liability  of  such  employer  under  any  agreement,  award,  findings,  or 
decree  shall  be  discharged  of  record. 

Article  III. 

PROCEDURE. 

Section  1.  If  the  employer  and  the  employee  reach  an  agreement  in 
regard  to  compensation  under  this  act,  a  memorandum  of  such  agree- 
ment signed  by  the  parties  shall  be  filed  in  the  office  of  the  clerk  of  the 
superior  court  having  jurisdiction  of  the  matter  as  provided  in  Section 
16  of  this  article.  The  clerk  shall  forthwith  docket  the  same  in  a  book 
kept  for  that  purpose,  and  shall  thereupon  present  said  agreement  to  a 
justice  of  the  superior  court,  and  when  approved  by  the  justice  the  agree- 
ment shall  be  enforceable  by  said  superior  court  by  any  suitable  process, 
including  executions  against  goods,  chattels  and  real  estate,  and  includ- 
ing proceedings  for  contempt  for  wilful  failure  or  neglect  to  obey  the 
provisions  of  said  agreement.  No  appeal  shall  lie  from  the  agreement 
thus  approved  unless  upon  allegation  that  such  agreement  had  been 
procured  by  fraud  or  coercion.  Such  agreement  shall  be  approved  by 
the  justice  only  when  its  terms  conform  to  the  provisions  of  this  act. 

When  death  has  resulted  from  the  injury  and  the  dependents  of  the 
deceased  employee  entitled  to  compensation  are,  or  the  apportionment 
thereof  among  them  is,  in  dispute,  such  agreement  may  relate  only  to 
the  amount  of  compensation. 

Sec.  2.  If  the  employer  and  employee  fail  to  reach  an  agreement  in 
regard  to  compensation  under  this  act,  either  employer  or  employee, 
and  when  death  has  resulted  from  the  injury  and  the  dependents  of  the 


277 

deceased  employee  entitled  to  compensation  are,  or  the  apportionment 
thereof  among  them  is,  in  dispute,  any  person  in  interest  may  file  in  the 
office  of  the  clerk  of  the  superior  court  having  jurisdiction  of  the  matter 
as  provided  in  Section  16  of  this  article,  a  petition  in  the  nature  of  a 
petition  in  equity  setting  forth  the  names  and  residences  of  the  parties, 
the  facts  relating  to  employment  at  the  time  of  the  injury,  the  cause, 
extent  and  character  of  the  injury,  the  amount  of  wages,  earnings,  or 
salary  received  at  the  time  of  the  injury,  and  the  knowledge  of  the  em- 
ployer or  notice  of  the  occurrence  of  the  injury,  and  such  other  facts  as 
may  be  necessary  and  proper  for  the  information  of  the  court,  and  shall 
state  the  matter  in  dispute  and  the  claims  of  the  petitioner  with  reference 
thereto. 

Sec.  3.  Within  four  days  after  the  filing  of  the  petition,  a  copy  thereof, 
attested  by  the  petitioner  or  his  attorney,  shall  be  served  upon  the  re- 
spondent in  the  same  manner  as  a  writ  of  summons  in  a  civil  action. 

Sec.  4.  Within  ten  days  after  the  filing  of  the  petition,  the  respondent 
shall  file  an  answer  to  said  petition,  together  with  a  copy  thereof  for  the 
use  of  the  petitioner,  which  shall  state  the  claims  of  the  respondent  with 
reference  to  the  matter  in  dispute  as  disclosed  by  the  petition.  No  plead- 
ings other  than  petition  and  answer  shall  be  required  to  bring  the  cause 
to  a  hearing  for  final  determination.  The  superior  court  may  grant  fur- 
ther time  for  filing  the  answer  and  allow  amendments  of  said  petition  and 
answer  at  any  stage  of  the  proceedings.  If  the  respondent  do  not  file 
an  answer,  the  cause  shall  proceed  without  formal  default  or  decree  pro 
confesso.  If  the  respondent  be  an  infant  or  person  under  disability,  the 
superior  court  shall  appoint  a  guardian  ad  litem  for  such  infant  or  per- 
son under  disability.  Such  guardian  ad  litem  may  be  appointed  on  any 
court  day  after  service  of  the  copy  referred  to  in  Section  3  of  this  article, 
upon  motion  of  any  party  after  notice  given  as  required  for  motions  made 
in  the  superior  court,  and  opportunity  to  said  infant  or  person  under  dis- 
ability to  be  heard  in  regard  to  the  choice  of  such  guardian  ad  litem. 
The  guardian  ad  litem  so  appointed  shall  file  the  answer  required  by  this 
section. 

Sec.  5.  The  petition  shall  be  in  order  for  assignment  for  hearing  on 
the  motion  day  which  occurs  next  after  fifteen  days  from  the  filing  of 
the  petition.  Upon  the  days  upon  which  said  petition  shall  be  in  order 
for  hearing  it  shall  take  precedence  of  other  cases  upon  the  calendar, 
except  cases  for  tenements  let  or  held  at  will  or  by  sufferance. 

Sec.  6.  The  justice  to  whom  said  petition  shall  be  referred  by  the 
court  shall  hear  such  witnesses  as  may  be  presented  by  each  party,  and 
in  a  summary  manner  decide  the  merits  of  the  controversy.  His  decision 
shall  be  filed  in  writing  with  the  clerk,  and  a  decree  shall  be  entered 
thereon.  Such  decree  shall  be  enforceable  by  said  superior  court  by  any 
suitable  process,  including  executions  against  goods,  chattels  and  real 
estate,  and  including  proceedings  for  contempt  for  wilful  failure  or  neglect 
to  obey  the  provisions  of  said  decree.    Such  decree  shall  contain  findings 


278 

of  fact,  which,  in  the  absence  of  fraud,  shall  be  conclusive.  The  superior 
court  may  award  as  costs  the  actual  expenditures,  or  such  part  thereof 
as  to  the  court  shall  seem  meet,  but  not  including  counsel  fees,  and  shall 
include  such  costs  in  its  decree.  The  superior  court  may  refuse  to  award 
costs,  and  no  costs  shall  be  awarded  against  an  infant  or  person  under 
disability  or  against  a  guardian  ad  litem. 

Sec.  7.  Any  person  aggrieved  by  the  final  decree  of  the  superior  court 
under  this  act  may  appeal  to  the  supreme  courl  upon  any  question  of 
law  or  equity  decided  adversely  to  the  appellant  by  said  final  decree  or 
by  any  proceeding  or  ruling  prior  thereto  appearing  of  record,  the  appel- 
lant having  first  had  his  objections  noted  to  any  adverse  rulings  made 
during  the  progress  of  the  trial  at  the  time  such  rulings  were  made,  if 
made  in  open  court  and  not  otherwise  of  record. 

The  appellant  shall  take  the  following  steps: 

(a)  Within  ten  days  after  entry  of  said  final  decree  he  shall  file  a  claim 
of  appeal  and,  if  a  transcript  of  the  testimony  and  ruhngs  or  any  part 
thereof  be  desired,  a  written  request  therefor. 

(b)  Within  such  time  as  the  justice  of  the  superior  court  who  heard  the 
petition,  or,  in  case  of  his  inability  to  act  from  any  cause  within  such 
time  as  any  other  justice  thereof  shall  fix,  whether  by  original  fixing  of 
the  time,  or  by  extension  thereof,  or  by  a  new  fixing  after  any  expiration 
thereof,  the  appellant  shall  file  reasons  of  appeal  stating  specifically  all 
the  questions  of  law  or  equity  decided  adversely  to  him  which  he  desires 
to  include  in  his  reasons  of  appeal,  together  with  a  transcript  of  as  much 
of  the  testimony  and  rulings  as  may  be  required.  The  supreme  court 
may  allow  amendments  of  said  reasons  of  appeal.  Upon  the  filing  of 
said  reasons  of  appeal  and  transcript,  the  clerk  of  the  superior  court  shall 
present  the  transcript  to  the  justice  who  heard  the  cause  for  allowance. 
The  justice  after  hearing  and  examination,  shall  restore  the  transcript  to 
the  files  of  the  clerk  with  a  certificate  of  his  action  thereon  made  within 
twenty  days  after  filing  the  transcript,  unless  the  twentieth  day  shall  fall 
in  vacation,  in  which  event  the  certificate  may  be  filed  at  any  time  before 
the  first  Monday  in  the  following  month  of  October. 

If  the  transcript  be  not  allowed  by  the  justice  who  heard  the  cause 
within  the  time  prescribed,  or  objection  to  his  allowance  be  made  by  any 
party,  the  correctness  of  the  transcript  may  be  determined  by  the  supreme 
court  by  petition  filed  within  thirty  days  after  filing  the  transcript,  unless 
the  thirtieth  day  shall  fall  in  vacation,  in  which  event  the  correctness  of 
the  transcript  may  be  determined  by  petition,  filed  on  or  before  the  tenth 
day  after  the  first  Monday  in  the  following  month  of  October.  In  all 
other  respects  than  in  time  of  filing  the  same  course  shall  be  followed  as 
provided  in  Section  21  of  Chapter  298  of  the  General  Laws  for  establish- 
ing the  truth  of  exceptions. 

Sec.  8.  Upon  the  restoration  of  the  transcript  to  the  files,  or,  if  there 
be  no  transcript,  then  upon  the  filing  of  the  reasons  of  appeal,  the  clerk 
of  the  superior  court  shall  certify  the  cause  and  all  papers  to  the  supreme 
court. 


279 

Sec.  9.  The  claim  of  an  appeal  shall  suspend  the  operation  of  the 
decree  appealed  from,  but,  in  case  of  default  in  taking  the  procedure 
required,  such  suspension  shall  cease,  and  the  superior  court  upon  motion 
of  any  party  shall  proceed  as  if  no  claim  of  appeal  had  been  made,  unless 
it  be  made  to  appear  to  the  superior  court  that  the  default  no  longer  exists. 

Sec.  10.  Any  court  day  in  the  supreme  court  shall  be  a  motion  day 
for  the  purpose  of  hearing  a  motion  to  assign  the  appeal  for  hearing. 

Sec.  11.  The  supreme  court  after  hearing  any  appeal  shall  determine 
the  same,  and  affirm,  reverse  or  modify  the  decree  appealed  from,  and 
may  itself  take,  or  cause  to  be  taken  by  the  superior  court,  such  further 
proceedings  as  shall  seem  just.  If  a  new  decree  shall  be  necessary,  it 
shall  be  framed  by  the  supreme  court  for  entry  by  the  superior  court. 
Thereupon  the  cause  shall  be  remanded  to  the  superior  court  for  such 
further  proceedings  as  shall  be  required. 

Sec.  12.  No  process  for  the  execution  of  a  final  decree  of  the  superior 
court  from  which  an  appeal  may  be  taken  shall  issue  until  the  expiration 
of  ten  days  after  the  entry  thereof,  unless  all  parties  against  whom  such 
decree  is  made  waive  an  appeal  by  a  writing  filed  with  the  clerk  or  by 
causing  an  entry  thereof  to  be  made  on  the  docket. 

Sec.  13.  If,  in  the  course  of  the  proceedings  in  any  cause,  any  ques- 
tion of  law  shall  arise  which  in  the  opinion  of  the  superior  court  is  of 
such  doubt  and  importance,  and  so  affects  the  merits  of  the  controversy, 
that  it  ought  to  be  determined  by  the  supreme  court  before  further  proceed- 
ings, the  superior  court  may  certify  such  question  to  the  supreme  court 
for  that  purpose,  and  stay  all  further  proceedings  except  such  as  are  neces- 
sary to  preserve  the  rights  of  the  parties. 

Sec.  14.  At  any  time  before  the  expiration  of  two  years  from  the  date 
of  the  approval  of  an  agreement,  or  the  entry  of  a  decree  fixing  compen- 
sation, but  not  afterwards,  and  before  the  expiration  of  the  period  for 
which  compensation  has  been  fixed  by  such  agreement  or  decree,  but  not 
afterwards,  any  agreement,  award,  findings  or  decree  may  be  from  time 
to  time  reviewed  by  the  superior  court  upon  the  application  of  either 
party,  after  due  notice  to  the  other  party,  upon  the  ground  that  the  in- 
capacity of  the  injured  employee  has  subsequently  ended,  increased,  or 
diminished.  Upon  such  review  the  court  may  increase,  diminish,  or  dis- 
continue the  compensation  from  the  date  of  the  application  for  review, 
in  accordance  with  the  facts,  or  make  such  other  order  as  the  justice  of 
the  case  may  require,  but  shall  order  no  change  of  the  status  existing 
prior  to  the  application  for  review.  The  finding  of  the  court  upon  such 
review  shall  be  served  on  the  parties  and  filed  with  the  clerk  of  the  court 
having  jurisdiction,  in  like  time  and  manner  and  subject  to  like  dispo- 
sition as  in  the  case  of  original  decrees:  Provided,  that  an  agreement  for 
compensation  may  be  modified  at  any  time  by  a  subsequent  agreement 
between  the  parties  approved  by  the  superior  court  in  the  same  manner 
as  original  agreements  in  regard  to  compensation  are  required  to  be  ap- 
proved by  the  provisions  of  Section  1  of  Article  III  of  this  act. 


280 

Sec.  15.  The  superior  court  shall  prescribe  forms  and  make  suitable 
orders  as  to  procedure  adapted  to  secure  a  speedy,  efficient  and  inexpensive 
disposition  of  all  proceedings  under  this  act;  and  in  making  such  orders 
said  court  shall  not  be  bound  by  the  provisions  of  the  General  Laws  relat- 
ing to  practice.  In  the  absence  of  such  orders,  special  orders  shall  be 
made  in  each  case. 

Sec.  16.  Proceedings  shall  be  brought  either  in  the  county  where  the 
accident  occurred  or  in  the  county  where  the  employer  or  employee  lives 
or  has  a  usual  place  of  business.  The  court  where  any  proceeding  is 
brought  shall  have  power  to  grant  a  change  of  venue. 

Sec.  17.  No  proceedings  under  this  act  shall  abate  because  of  the 
death  of  the  petitioner,  but  may  be  prosecuted  by  his  legal  representa- 
tive or  by  any  person  entitled  to  compensation  by  reason  of  said  death, 
under  the  provisions  of  this  act. 

Sec.  18.  An  employee's  claim  for  compensation  under  this  act  shall 
be  barred  unless  an  agreement  or  a  petition,  as  provided  in  this  article, 
shall  be  filed  within  two  years  after  the  occurrence  of  the  injury,  or,  in 
case  of  the  death  of  the  employee,  or,  in  the  event  of  his  physical  or  mental 
incapacity,  within  two  years  after  the  death  of  the  employee  or  the  re- 
moval of  such  physical  or  mental  incapacity. 

Sec.  19.  If  an  employee  receiving  a  weekly  pajonent  under  this  act 
shall  cease  to  reside  in  the  state,  or,  if  his  residence  at  the  time  of  the 
accident  is  in  an  adjoining  state,  the  superior  court,  upon  the  application 
of  either  party,  may,  in  its  discretion,  having  regard  to  the  welfare  of 
the  employee  and  the  convenience  of  the  employer,  order  such  payment 
to  be  made  monthly  or  quarterly  instead  of  weekly. 

Sec.  20.  All  questions  arising  under  this  act,  if  not  settled  by  agree- 
ment of  the  parties  interested  therein,  shall,  except  as  otherwise  herein 
provided,  be  determined  by  the  superior  court. 

Sec.  21.  Where  the  injury  for  which  compensation  is  payable  under 
this  act  was  caused  under  circumstances  creating  a  legal  liability  in  some 
person  other  than  the  employer  to  pay  damages  in  respect  thereof,  the 
employee  may  take  proceedings  both  against  that  person  to  recover 
damages  and  against  any  person  liable  to  pay  compensation  under  this 
act  for  such  compensation,  but  shall  not  be  entitled  to  receive  both  dam- 
ages and  compensation ;  and  if  the  employee  has  been  paid  compensation 
under  this  act,  the  person  by  whom  the  compensation  was  paid  shall  be 
entitled  to  indemnity  from  the  person  so  liable  to  pay  damages  as  afore- 
said, and,  to  the  extent  of  such  indemnity,  shall  be  subrogated  to  the 
rights  of  the  employee  to  recover  damages  therefor. 

Article  IV. 

ALTERNATIVE   SCHEMES  PERMITTED. 

Section  1.  Any  employer  may  enter  into  an  agreement  with  his 
employees  in  any  employment  to  which  this  act  appUes  to  provide  a 
scheme  of  compensation,  benefit,  or  insurance,  in  lieu  of  the  compensa- 


281 

tion  provided  for  in  this  act,  subject  to  the  approval  of  the  superior  court. 
Such  approval  shall  be  granted  only  on  condition  that  the  scheme  pro- 
posed provides  as  great  benefits  as  those  provided  by  this  act;  and,  if 
the  scheme  provides  for  contributions  by  employees,  it  shall  confer  addi- 
tional benefits  at  least  equivalent  to  these  contributions.  If  such  a 
scheme  meets  with  the  approval  of  said  court,  the  clerk  shall  issue  a 
certificate  enabling  the  employer  to  contract  with  any  or  all  of  his  em- 
ployees in  employments  to  which  this  act  applies  to  substitute  such  scheme 
for  the  provisions  of  this  act  for  a  period  of  not  more  than  five  years. 

Sec.  2.  No  scheme  which  provides  for  contributing  by  employees 
shall  be  so  certified  which  does  not  contain  suitable  provisions  for  the 
equitable  distribution  of  any  money  or  securities  held  for  the  purpose  of 
the  scheme,  after  due  provision  has  been  made  to  discharge  the  liabihties 
already  incurred,  if  and  when  such  certificate  is  revoked  or  the  scheme 
otherwise  terminated. 

Sec.  3.  If  at  any  time  the  scheme  no  longer  fulfils  the  requirements 
of  this  article,  or  is  not  fairly  administered,  or  any  other  valid  and  sub- 
stantial reason  therefor  exists,  the  superior  court,  on  reasonable  notice  to 
the  interested  parties,  shall  revoke  the  certificate  and  the  scheme  shall 
thereby  be  terminated. 

Article  V. 

MISCELLANEOUS   PROVISIONS. 

Section  1.    In  this  act,  unless  the  context  otherwise  requires: 

(a)  "Employer"  includes  any  person,  copartnership,  corporation  or 
voluntary  association,  and  the  legal  representative  of  a  deceased  em- 
ployer. 

(b)  "Employee"  means  any  person  who  has  entered  into  the  employ- 
ment of,  or  works  under  contract  of  service  or  apprenticeship  with,  an 
employer,  and  whose  remuneration  does  not  exceed  eighteen  hundred  dol- 
lars a  year.  It  does  not  include  a  person  whose  employment  is  of  a  casual 
nature,  and  who  is  employed  otherwise  than  for  the  purpose  of  the  em- 
ployer's trade  or  business.  Any  reference  to  an  employee  who  has  been 
injured  shall,  where  the  employee  is  dead,  include  a  reference  to  his  de- 
pendents as  hereinbefore  defined,  or  to  his  legal  representative,  or,  where 
he  is  a  minor,  or  incompetent,  to  his  conservator  or  guardian. 

Sec  2.  Nothing  in  this  act  shall  affect  the  liability  of  the  employer 
to  a  fine  or  penalty  under  any  other  statute. 

Sec.  3.  The  provisions  of  this  act  shall  not  apply  to  injuries  sustained, 
or  accidents  which  occur,  prior  to  the  taking  effect  hereof. 

Sec.  4.  If  any  section  of  this  act  shall  be  declared  unconstitutional 
or  invalid,  such  unconstitutionaUty  or  invaUdity  shall  in  no  way  affect 
the  validity  of  any  other  portion  thereof  which  can  be  given  reasonable 
effect  without  the  part  so  declared  unconstitutional  or  invalid. 

Sec.  5.  In  all  cases  where  an  employer  and  employee  shall  have  elected 
to  become  subject  to  the  provisions  of  this  act,  the  provisions  of  Section 


282 

14  of  Chapter  283  of  the  General  Laws,  shall  not  apply  while  this  act  is 

in  effect. 
Sec.  6.    All  acts  and  parts  of  acts  inconsistent  herewith  are  hereby 

repealed. 

Sec.  7.    This  act  may  be  cited  as  "Workmen's  Compensation  Act." 
Sec.  8.    This  act  shall  take  effect  on  the  first  day  of  October,  nineteen 

hundred  and  twelve.  Approved  April  29,  1912. 


STATE  OF  WASHINGTON. 
Laws  of  1911,  Chapter  74. 
Relating  to  Compensation  of  Injured  Workmen. 
An  Act  relating  to  the  Compensation  of  Injured  Workmen  in  Our 
Industries,  and  the  Compensation  to  their  Dependents  where 
Such  Injuries  result  in  Death,  creating  an  Industrial  Insur- 
ance Department,  making  an  Appropriation  for  its  Adminis- 
tration, providing  for  the  Creation  and  Disbursement  of  Funds 
FOR  the  Compensation  and  Care  of  Workmen  injured  in  Hazard- 
ous Employment,  providing  Penalties  for  the  Non-observance 
of  Regulations  for  the  Prevention  of  such  Injuries  and  for 
Violation  of  its  Provisions,  asserting  and  exercising  the  Police 
Power  in  Such  Cases,  and,  except  in  Certain  Specified  Cases, 

ABOLISHING  THE  DoCTRINE  OF  NEGLIGENCE  AS  A  GrOUND  FOR  RECOVERY 

OF  Damages  against  Employers,  and  depriving  the  Courts  of 
Jurisdiction  of  Such  Controversies,  and  repealing  Sections 
6594,  6595,  and  6596  of  Remington  and  Ballinger's  Annotated 
Codes  and  Statutes  of  Washington,  relating  to  Employes  in 
Factories,  Mills  or  Workshops  where  Machinery  is  used.  Ac- 
tions FOR  THE  Recovery  of  Damages  and  prescribing  a  Punish- 
ment FOR  Violation  thereof. 
Be  it  enacted  by  the  Legislature  of  the  State  of  Washington: 
Section  1.    Declaration  of  Police  Power. 

The  common  law  system  governing  the.  remedy  of  workmen  against 
employers  for  injuries  received  in  hazardous  work  is  inconsistent  with 
modern  industrial  conditions.  In  practice  it  proves  to  be  economically 
unwise  and  unfair.  Its  administration  has  produced  the  result  that  little 
of  the  cost  of  the  employer  has  reached  the  workmen  and  that  little  only 
at  large  expense  to  the  public.  The  remedy  of  the  workman  has  been 
uncertain,  slow  and  inadequate.  Injuries  in  such  works,  formerly  occa- 
sional, have  become  frequent  and  inevitable.  The  welfare  of  the  state 
depends  upon  its  industries,  and  even  more  upon  the  welfare  of  its  wage- 
worker.  The  State  of  Washington,  therefore,  exercising  herein  its  police 
and  sovereign  power,  declares  that  all  phases  of  the  premises  are  with- 
drawn from  private  controversy,  and  sure  and  certain  relief  for  workmen, 
injured  in  extra  hazardous  work,  and  their  families  and  dependents  is 


283 

hereby  provided  regardless  of  questions  of  fault  and  to  the  exclusion  of 
every  other  remedy,  proceeding  or  compensation,  except  as  otherwise 
provided  in  this  act;  and  to  that  end  all  civil  actions  and  civil  causes  of 
action  for  such  personal  injuries  and  all  jurisdiction  of  the  courts  of  the 
state  over  such  causes  are  hereby  abolished,  except  as  in  this  act  pro- 
vided. 

Sec.  2.    Enumeration  of  Extra  Hazardous  Works. 

There  is  a  hazard  in  all  employment,  but  certain  employments  have 
come  to  be,  and  to  be  recognized  as  being  inherently  constantly  dangerous. 
This  act  is  intended  tg  apply  to  all  such  inherently  hazardous  works  and 
occupations,  and  it  is  the  purpose  to  embrace  all  of  them,  which  are  within 
the  legislative  jurisdiction  of  the  state,  in  the  following  enumeration, 
and  they  are  intended  to  be  embraced  within  the  term  "extra  hazardous" 
wherever  used  in  this  act,  to- wit: 

Factories,  mills  and  workshops  where  machinery  is  used;  printing,  elec- 
trotyping,  photo-engraving  and  stereotyping  plants  where  machinery  is 
used;  foundries,  blast  furnaces,  mines,  wells,  gas  works,  waterworks, 
reduction  works,  breweries,  elevators,  wharves,  docks,  dredges,  smelters, 
powder  works;  laundries  operated  by  power;  quarries;  engineering  works; 
logging,  lumbering  and  ship  building  operations;  logging,  street  and  inter- 
urban  railroads;  buildings  being  constructed,  repaired,  moved  or  demol- 
ished; telegraph,  telephone,  electric  light  or  power  plants  or  lines,  steam 
heating  or  power  plants,  steamboats,  tugs,  ferries  and  railroads.  If  there 
be  or  arise  any  extra  hazardous  occupation  or  work  other  than  those  here- 
inabove enumerated,  it  shall  come  under  this  act,  and  its  rate  of  contribu- 
tion to  the  accident  fund  hereinafter  established,  shall  be,  until  fixed  by 
legislation,  determined  by  the  department  hereinafter  created,  upon  the 
basis  of  the  relation  which  the  risk  involved  bears  to  the  risks  classified 
in  section  4. 

Sec.  3.     Definitions. 

In  the  sense  of  this  act  words  employed  mean  as  here  stated,  to-wit: 

Factories  mean  undertakings  in  which  the  business  of  working  at  com- 
modities is  carried  on  with  power-driven  machinery,  either  in  manufac- 
ture, repair  or  change,  and  shall  include  the  premises,  yard  and  plant  of 
the  concern. 

Workshop  means  any  plant,  yard,  premises,  room  or  place  wherein 
power-driven  machinery  is  employed  and  manual  labor  is  exercised  by 
way  of  trade  for  gain  or  otherwise  in  or  incidental  to  the  process  of  mak- 
ing, altering,  repairing,  printing  or  ornamenting,  finishing  or  adapting 
for  sale  or  otherwise  any  article  or  part  of  article,  machine  or  thing,  over 
which  premises,  room  or  place  the  employer  of  the  person  working  therein 
has  the  right  of  access  or  control. 

Mill  means  any  plant,  premises,  room  or  place  where  machinery  is 
used,  any  process  of  machinery,  changing,  altering  or  repairing  any  article 
or  commodity  for  sale  or  otherwise,  together  with  the' yards  and  premises 
which  are  a  part  of  the  plant,  including  elevators,  warehouses  and  bimkers. 


284 

Mine  means  any  mine  where  coal,  clay,  ore,  mineral,  gypsum  or  rock 
is  dug  or  mined  underground. 

Quarry  means  an  open  cut  from  which  coal  is  mined,  or  clay,  ore,  min- 
eral, gypsum,  sand,  gravel  or  rock  is  cut  or  taken  for  manufacturing, 
building  or  construction  purposes. 

Engineering  work  means  any  work  of  construction,  improvement  or 
alteration  or  repair  of  buildings,  structures,  streets,  highways,  sewers, 
street  railways,  railroads,  logging  roads,  interurban  railroads,  harbors, 
docks,  canals;  electric,  steam  or  water  power  plants;  telegraph  and 
telephone  plants  and  lines;  electric  light  or  power  lines,  and  includes  any 
other  works  for  the  construction,  alteration  or  repair  of  which  machinery 
driven  by  mechanical  power  is  used. 

Except  when  otherwise  expressly  stated,  employer  means  any  person, 
body  of  persons,  corporate  or  otherwise,  and  the  legal  personal  represen- 
tatives of  a  deceased  employer,  all  while  engaged  in  this  state  in  any  extra 
hazardous  work. 

Workman  means  every  person  in  this  state,  who,  after  September  30, 
1911,  is  engaged  in  the  employment  of  an  employer  carrying  on  or  con- 
ducting any  of  the  industries  scheduled  or  classified  in  section  4,  whether 
by  way  of  manual  labor  or  otherwise,  and  whether  upon  the  premises  or 
at  the  plant  or,  he  being  in  the  course  of  his  employment,  away  from  the 
plant  of  his  employer:  Provided,  however,  That  if  the  injury  to  a  work- 
man occurring  away  from  the  plant  of  his  employer  is  due  to  the  negli- 
gence or  wrong  of  another  not  in  the  same  employ,  the  injured  workman, 
or  if  death  result  from  the  injury,  his  widow,  children,  or  dependents,  as 
the  case  may  be,  shall  elect  whether  to  take  under  this  act  or  seek  a  remedy 
against  such  other,  such  election  to  be  in  advance  of  any  suit  under  this 
section;  and  if  he  take  under  this  act,  the  cause  of  action  against  such 
other  shall  be  assigned  to  the  state  for  the  benefit  of  the  accident  fund; 
if  the  other  choice  is  made,  the  accident  fund  shall  contribute  only  the 
deficiency,  if  any,  between  the  amount  of  recovery  against  such  third 
person  actually  collected,  and  the  compensation  provided  or  estimated 
by  this  act  for  such  case.  Any  such  cause  of  action  assigned  to  the  state 
may  be  prosecuted,  or  compromised  by  the  department,  in  its  discretion. 
Any  compromise  by  the  workman  of  any  such  suit,  which  would  leave  a 
deficiency  to  be  made  good  out  of  the  accident  fund,  may  be  made  only 
with  the  written  approval  of  the  department. 

Any  individual  employer  or  any  member  or  officer  of  any  corporate 
employer  who  shall  be  carried  upon  the  pay  roll  at  a  salary  or  wage  not 
less  than  the  average  salary  or  wage  named  in  such  pay  roll  and  who 
shall  be  injured,  shall  be  entitled  to  the  benefit  of  this  act  as  and  under 
the  same  circumstances  as  and  subject  to  the  same  obligations  as  a  work- 
man. 

Dependent  moans  any  of  the  following  named  relatives  of  a  workman 
whose  death  results  from  any  injury  and  who  leaves  surviving  no  widow, 
widower,  or  child  under  the  age  of  sixteen  years,  viz.:  invalid  child  over 


285 

the  age  of  sixteen  years,  daughter,  between  sixteen  and  eighteen  years 
of  age,  father,  mother,  grandfather,  grandmother,  step-father,  step- 
mother, grandson,  granddaughter,  step-son,  step-daughter,  brother,  sis- 
ter, half-sister,  haK-brother,  niece,  nephew,  who,  at  the  time  of  the  acci- 
dent, are  dependent,  in  whole  or  in  part,  for  their  support  upon  the 
earnings  of  the  workman.  Except  where  otherwise  provided  by  treaty, 
aliens,  other  than  father  or  mother,  not  residing  within  the  United  States 
at  the  time  of  the  accident,  are  not  included. 

Beneficiary  means  a  husband,  wife,  child  or  dependent  of  a  workman, 
in  whom  shall  vest  a  right  to  receive  payment  under  this  act. 

Invalid  means  one  who  is  physically  or  mentally  incapacitated  from 
earning. 

The  word  "child,"  as  used  in  this  act,  includes  a  posthumous  child,  a 
child  legally  adopted  prior  to  the  injury,  and  an  illegitimate  child  legiti- 
mated prior  to  the  injury. 

The  words  injury  or  injured,  as  used  in  this  act,  refer  only  to  an  injury 
resulting  from  some  fortuitous  event  as  distinguished  from  the  contrac- 
tion of  disease. 

Sec.  4.    Schedule  of  Contribution. 

Insomuch  as  industry  should  bear  the  greater  portion  of  the  burden  of 
the  cost  of  its  accidents,  each  employer  shall,  prior  to  January  15th  of 
each  year,  pay  into  the  state  treasury,  in  accordance  with  the  following 
schedule,  a  sum  equal  to  a  percentage  of  his  total  pay  roll  for  that  year, 
to- wit:  (the  same  being  deemed  the  most  accurate  method  of  equitable 
distribution  of  burden  in  proportion  to  relative  hazard) : 

Construction  Work. 
Tunnels;    bridges;    trestles;   sub-aqueous  works;    ditches  and  canals  (other 
than  irrigation  without  blasting) ;  dock  excavation;  fire  escapes;  sewers; 

house  moving;  house  wrecking 065 

Iron,  or  steel  frame  structures  or  parts  of  structures    080 

Electric  light  or  power  plants  or  systems;  telegraph  or  telephone  systems; 

pile  driving ;  steam  railroads 050 

Steeples,  towers  or  grain  elevators,  not  metal  framed;  dry-docks  without 
excavation;  jetties;  breakwaters;  chimneys;  marine  railways;  water- 
works or  systems;  electric  railways  with  rock  work  or  blasting;  blasting; 

erecting  fireproof  doors  or  shutters 050 

Steam  heating  plants;  tanks,  water  towers  or  windmills,  not  metal  frames   . . .      .040 

Shaft  sinking    060 

Concrete  buildings;  freight  or  passenger  elevators;  fireproofing  of  build- 
ings; galvanized  iron  or  tin  works ;  gas  works,  or  systems;  marble,  stone 
or  brick  work;  road  making  with  blasting;  roof  work;  safe  moving;  slate 

work;  outside  plumbing  work;  metal  smokestacks  or  chimneys 050 

Excavations  not  otherwise  specified;  blast  furnaces     040 

Street  or  other  grading;  cable  or  electric  street  railways  without  blasting; 

advertising  signs;  ornamental  metal  work  in  buildings 035 

Ship  or  boat  building  or  wrecking  with  scaffolds;  floating  docks 045 

Carpenter  work  not  otherwise  specified 035 

Installation  of  steam  boilers  or  engines;  placing  wire  in  conduits;  installing 
dynamos;  putting  up  belts  for  machinery;  marble,  stone  or  tile  setting, 
inside  work;  mantle  setting;  metal  ceiling  work;  mill  or  ship  wrighting; 


286 

painting  of  buildings  or  structures ;  installation  of  automatic  sprinklers ; 
ship  or  boat  rigging;  concrete  laying  in  floors,  foundations  or  street  pav- 
ing; asphalt  laying;  covering  steam   pipes  or   boilers;  installation   of 

machinery  not  otherwise  specified    030 

Drilling  wells;  installing  electrical  apparatus  or  fire  alarm  systems  in  build- 
ings; house  heating  or  ventilating  systems;  glass  setting;  building  hot 
houses;  lathing;  paper  hanging;  plastering;  inside  plumbing;  wooden 
stair  building;  road  making 020 

Operation  (including  Repaik  Work)  of 

(All  combinations  of  material  take  the  higher  rate  when  not  otherwise  pro- 
vided) . 
Logging   railroads;   railroads;  dredges;   interurban   electric   railroads   using 

third  rail  system;  dry  or  floating  docks   050 

Electric  light  or  power  plants;  interurban  electric  railroads  not  using  third 

rail  system;  quarries    040 

Street  railways,  all  employees;  telegraph  or  telephone  systems;  stone  crush- 
ing; blasting  furnaces;  smelters;  coal  mines;   gas  works;  steamboats; 

tugs;  ferries   030 

Mines,  other  than  coal;  steam  heating  or  power  plants    025 

Grain  elevators;  laundries;  waterworks;  paper  or  pulp  mills;  garbage  works     .020 

Factories  using  Powbh-Drivbn  Machinery. 

Stamping  tin  or  metal 045 

Bridge  work;  railroad  car  or  locomotive  making  or  repairing;  cooperage; 
logging  with  or  without  machinery;  saw  mills;  shingle  mills;  staves; 
veneer;  box;  lath;  packing  cases;  sash,  door  or  blinds;  barrel;  keg; 
pail;  basket;  tub;  wooden  ware  or  wooden  fibre  ware;  rolling  mills; 
making  steam  shovels  or  dredges;  tanks;  water  towers;  asphalt; 
building  material  not  otherwise  specified;  fertilizer;  cement;  stone 
with  or  without  machinery;  kindling  wood;  masts  and  spars  with  or 
without  machinery;  canneries,  metal  stamping  extra;  creosoting  works; 
pile  treating  works 025 

Excelsior;  iron,  steel,  copper,  zinc,  brass  or  lead  articles  or  wares  not  other- 
wise specified;  working  in  wood  not  otherwise  specified;  hardware; 
tile;  brick;  terracotta;  fireclay;  pottery;  earthenware;  porcelain  ware; 
peat  fuel ;  brickettes   020 

Breweries;  bottling    works;  boiler    works;  foundries;  machine    shops    not 

otherwise  specified 020 

Cordage;  working  in  food  stuffs,  including  oils,  fruits  and  vegetables;  work- 
ing in  wool,  cloth,  leather,  paper,  broom,  brush,  rubber  or  textiles  not 
otherwise  specified 015 

Making  jewelry,  soap,  tallow,  lard,  grease,  condensed  milk 015 

Creameries;  printing;  electrotyping;  photo-engraving;  engraving;  litho- 
graphing     015 

Miscellaneous  Work. 

Stevedoring;  longshoring 030 

Operating  stock  yards,  with  or  without  railroad  entry;  packinghouses 025 

Wharf  operation;  artificial  ice,  refrigerating  or  cold  storage  plants;  tanneries; 

electric  systems  not  otherwise  specified 020 

Theater  stage  employes    015 

Fire  works  manufacturing    050 

Powder  works 100 


287 

The  application  of  this  act  as  between  employers  and  workmen  shall 
date  from  and  include  the  first  day  of  October,  1911.  The  payment  for 
1911  shall  be  made  prior  to  the  day  last  named,  and  shall  be  preliminarily 
collected  upon  the  pay  roll  of  the  last  preceding  three  months  of  opera- 
tion. At  the  end  of  each  year  an  adjustment  of  accounts  shall  be  made 
upon  the  basis  of  the  actual  pay  roll.  Any  shortage  shall  be  made  good 
on  or  before  February  1st,  following.  Every  employer  who  shall  enter 
into  business  at  any  intermediate  day  shall  make  his  payment  for  the 
initial  year  or  portion  thereof  before  commencing  operation;  its  amount 
shall  be  calculated  upon  his  estimated  pay  roll,  an  adjustment  shall  be 
made  on  or  before  February  1st  of  the  following  year  in  the  manner  above 
provided. 

For  the  purpose  of  such  payments  accounts  shall  be  kept  with  each 
industry  in  accordance  with  the  classification  herein  provided  and  no 
class  shall  be  liable  for  the  depletion  of  the  accident  fund  from  accidents 
happening  in  any  other  class.  Each  class  shall  meet  and  be  liable  for 
the  accidents  occurring  in  such  class.  There  shall  be  collected  from  each 
class  as  an  initial  payment  into  the  accident  fund  as  above  specified  on 
or  before  the  1st  day  of  October,  1911,  one-fourth  of  the  premium  of  the 
next  succeeding  year,  and  one-twelfth  thereof  at  the  close  of  each  month 
after  December,  1911 :  Provided,  Any  class  having  sufficient  funds  credited 
to  its  account  at  the  end  of  the  first  three  months  or  any  month  there- 
after, to  meet  the  requirements  of  the  accident  fund,  that  class  shall  not 
be  called  upon  for  such  month.  In  case  of  accidents  occurring  in  such 
class  after  lapsed  payment  or  payments  said  class  shall  pay  the  said 
lapsed  or  deferred  payments  commencing  at  the  first  lapsed  payment,  as 
may  be  necessary  to  meet  such  requirements  of  the  accident  fund. 

The  fund  thereby  created  shall  be  termed  the  "accident  fund"  which 
shall  be  devoted  exclusively  to  the  purpose  specified  for  it  in  this  act. 

In  that  the  intent  is  that  the  fund  created  under  this  section  shall 
ultimately  become  neither  more  or  less  than  self-supporting,  exclusive 
of  the  expense  of  administration,  the  rates  in  this  section  named  are 
subject  to  future  adjustment  by  the  legislature,  and  the  classifications  to 
rearrangement  following  any  relative  increase  or  decrease  of  hazard  shown 
by  experience. 

It  shall  be  unlawful  for  the  employer  to  deduct  or  obtain  any  part  of 
the  premium  required  by  this  section  to  be  by  him  paid  from  the  wages 
or  earnings  of  his  workmen  or  any  of  them,  and  the  making  or  attempt 
to  make  any  such  deduction  shall  be  a  gross  misdemeanor.  If,  after  this 
act  shall  have  come  into  operation,  it  is  shown  by  experience  under  the 
act,  because  of  poor  or  careless  management,  any  establishment  or  work 
is  unduly  dangerous  in  comparison  with  other  like  establishments  or 
works,  the  department  may  advance  its  classification  of  risks  and  premium 
rates  in  proportion  to  the  undue  hazard.  In  accordance  with  the  same 
principle,  any  such  increase  in  classification  or  premium  rate,  shall  be 
subject  to  restoration  to  the  schedule  rate.    Any  such  change  in  classi- 


288 

fication  of  risks  or  premium  rates,  or  any  change  caused  by  change  in  the 
class  of  work,  occurring  during  the  year  shall,  at  the  time  of  the  annual 
adjustment,  be  adjusted  by  the  department  in  proportion  to  its  duration 
in  accordance  with  the  schedule  of  this  section.  If,  at  the  end  of  any  year, 
it  shall  be  seen  that  the  contribution  to  the  accident  fund  by  any  class 
of  industry  shall  be  less  than  the  drain  upon  the  fund  on  account  of  that 
class,  the  deficiency  shall  be  made  good  to  the  fund  on  the  1st  day  of 
February  of  the  following  year  by  the  employers  of  that  class  in  propor- 
tion to  their  respective  pajmients  for  the  past  year. 

For  the  purposes  of  such  payment  and  making  good  of  deficit  the  par- 
ticular classes  of  industry  shall  be  as  follows: 

CONSTRUCTION  WORK. 

Class  1.    Tunnels;   sewer;   shaft  sinking;   driUing  wells. 

Class  2.  Bridges;  mill  wrighting;  trestles;  steeples,  towers  or  grain 
elevators  not  metal  framed;  tanks,  water  towers,  wind-mills  not  metal 
framed. 

Class  3.  Sub-aqueous  works;  canal  other  than  irrigation  or  docks 
with  or  without  blasting;  pile  driving;  jetties;  breakwaters;  marine  rail- 
ways. 

Class  4.    House  moving;  house  wrecking;  safe  moving. 

Class  5.  Iron  or  steel  frame  structures  or  parts  of  structures;  fire 
escapes;  erecting  fire-proof  doors  or  shutters;  blast  furnaces;  concrete 
chimneys;  freight  or  passenger  elevators;  fire  proofing  of  buildings;  gal- 
vanized iron  or  tin  work;  marble,  stone  or  brick  work;  roof  work;  slate 
work;  plumbing  work;  metal  smoke  stack  or  chimneys;  advertising 
signs;  ornamental  metal  work  in  buildings;  carpenter  work  not  other- 
wise specified;  marble,  stone  or  tile  setting;  mantle  setting;  metal  ceil- 
ing work;  painting  of  buildings  or  structures;  concrete  laying  in  floors 
or  foundations ;  glass  setting;  building  hot  houses;  lathing;  paper  hang- 
ing; plastering;  wooden  stair  building. 

Class  6.  Electric  light  and  power  plants  or  system;  telegraph  or  tele- 
phone systems;  cable  or  electric  railways  with  or  without  rock  work  or 
blasting;  waterworks  or  systems;  steam  heating  plants;  gas  works  or 
systems;  installation  of  steam  boilers  or  engines;  placing  wires  in  con- 
duits; installing  dynamos;  putting  up  belts  for  machinery;  installation 
of  automatic  sprinklers;  covering  steam  pipes  or  boilers;  installation  of 
machinery  not  otherwise  specified;  installing  electrical  apparatus  or  fire 
alarm  systems  in  buildings;  house  heating  or  ventilating  systems. 

Class  7.    Steam  railroads;  logging  railroads. 

Class  8.  Road  making;  street  or  other  grading;  concrete  laying  in 
street  paving;  asphalt  laying.  • 

Class  9.  Ship  or  boat  building  with  scaffolds;  ship  wrighting;  ship 
or  boat  rigging;  floating  docks. 


289 


OPERATION   (including  REPAIR  WORk)    OP 

Class  10.  Logging;  saw  mills;  shingle  mills;  lath  mills;  lath  mills; 
masts  and  spars  with  or  without  machinery. 

Class  12.  Dredges;  dry  or  floating  docks. 

Class  13.  Electric  light  or  power  plants  or  systems;    steam  heat  or 

power  plants  or  systems;  electric  systems  not  otherwise  specified. 

Class  14.  Street  railways. 

Class  15.  Telegraph  systems;  telephone  systems. 

Class  16.  Coal  mines. 

Class  17.  Quarries;   stone  crushing;   mines  other  than  coal. 

Class  18.  Blast  furnaces;  smelters;  roUing  mills. 

Class  19.  Gas  works. 

Class  20.  Steamboats;  tugs;  ferries. 

Class  21.  Grain  elevators. 

Class  22.  Laundries. 

Class  23.  Water  works. 

Class  24.  Paper  or  pulp  mills. 

Class  25.  Garbage  works;  fertihzer. 

FACTORIES   (using  POWER-DRIVEN  MACHINERY). 

Class  26.    Stamping  tin  or  metal. 

Class  27.  Bridge  work;  making  steam  shovels  or  dredges;  tanks; 
water  towers. 

Class  28.    Railroad  car  or  locomotive  making  or  repairing. 

Class  29.  Cooperage;  staves;  veneer;  box;  packing  cases;  sash[,] 
door  or  blinds;  barrel;  keg;  pail;  basket;  tub;  wood  ware  or  wood  fibre 
ware;  kindUngwood;  excelsior;  working  in  wood  not  otherwise  specified. 

Class  30.    Asphalt. 

Class  31.  Cement;  stone  with  or  without  machinery;  building  ma- 
terial not  otherwise  specified. 

Class  32.    Canneries  of  fruits  or  vegetables. 

Class  33.    Canneries  of  fish  or  meat  products. 

Class  34.  Iron,  steel,  copper,  zinc,  brass  or  lead  articles  or  wares; 
hardware;  boiler  works;  foundries;  machine  shops  not  otherwise  speci- 
fied. 

Class  35.  Tile;  brick;  terra  cotta;  fire  clay;  pottery;  earthenware; 
porcelain  ware. 

Class  36.    Peat  fuel;  brickettes. 

Class  37.    Breweries;  bottling  works. 

Class  38.  Cordage;  working  in  wool,  cloth,  leather,  paper,  brush, 
rubber  or  textile  not  otherwise  specified. 

Class  39.    Working  in  food  stuffs,  including  oils,  fruits,  vegetables. 

Class  40.    Condensed  milk;  creameries. 

Class  41.  Printing;  electrotyping;  photo-engraving;  engraving;  litho- 
graphing; making  jewelry. 


290 

Class  42.    Stevedoring;  longshoring;  wharf  operation. 

Class  43.  Stock  yards;  packing  houses;  making  soap,  tallow,  lard, 
grease;  tanneries. 

Class  44.    Artificial  ice,  refrigerating  or  cold  storage  plants. 

Class  45.    Theater  stage  employees. 

Class  46.    Fire  works  manufacturing;  powder  works. 

Class  47.    Creosoting  works;  pile  treating  works. 

If  a  single  establishment  or  work  comprises  several  occupations  listed 
in  this  section  in  different  risk  classes,  the  premium  shall  be  computed 
according  to  the  pay  roU  of  each  occupation  if  clearly  separable;  other- 
wise an  average  rate  of  premium  shall  be  charged  for  the  entire  establish- 
ment, taking  into  consideration  the  number  of  employes  and  the  relative 
hazards.  If  an  employer  besides  employing  workmen  in  extra  hazardous 
employment  shall  also  employ  workmen  in  employments  not  extra  haz- 
ardous the  provisions  of  this  act  shall  apply  only  to  the  extra  hazardous 
departments  and  employments  and  the  workmen  employed  therein.  In 
computing  the  pay  roll  the  entire  compensation  received  by  every  work- 
man employed  in  extra  hazardous  employment  shall  be  included,  whether 
it  be  in  the  form  of  salary,  wage,  piece  work,  overtime,  or  any  allowance 
in  the  way  of  profit-sharing,  premium  or  otherwise,  and  whether  payable 
in  money,  board,  or  otherwise. 

Sec.  5.    Schedule  of  Awards. 

Each  workman  who  shall  be  injured  whether  upon  the  premises  or  at 
the  plant  or,  he  being  in  the  course  of  his  employment,  away  from  the 
plant  of  his  employer,  or  his  family  or  dependents  in  case  of  death  of  the 
workman,  shall  receive  out  of  the  accident  fund  compensation  in  accord- 
ance with  the  following  schedule,  and,  except  as  in  this  act  otherwise 
provided,  such  payment  shall  be  in  lieu  of  any  and  all  rights  of  action 
whatsoever  against  any  person  whomsoever. 

COMPENSATION   SCHEDULE. 

(a)  Where  death  results  from  the  injury  the  expenses  of  burial  shall 
be  paid  in  all  cases,  not  to  exceed  $75.00  in  any  case,  and 

(1)  If  the  workman  leaves  "a  widow  or  invalid  widower,  a  monthly 
payment  of  $20.00  shall  be  made  throughout  the  life  of  the  surviving 
spouse,  to  cease  at  the  end  of  the  month  in  which  remarriage  shall  occur; 
and  the  surviving  spouse  shall  also  receive  $5.00  per  month  for  each  child 
of  the  deceased  under  the  age  of  sixteen  years  at  time  of  the  occurrence 
of  the  injury  until  such  minor  child  shall  reach  the  age  of  sixteen  years, 
but  the  total  monthly  payment  under  this  paragraph  (1)  of  subdivision  (a) 
shall  not  exceed  $35.00.  Upon  remarriage  of  a  widow  she  shall  receive, 
once  and  for  all,  a  lump  sum  equal  to  twelve  times  her  monthly  allowance, 
viz. :  the  sum  of  $240.00,  but  the  monthly  payment  for  the  child  or  children 
shall  continue  as  before. 

(2)  If  the  workman  leaves  no  wife  or  husband,  but  a  child  or  children 
under  the  age  of  sixteen  years,  a  monthly  payment  of  $10.00  shall  be 


291 

made  to  each  such  child  until  such  child  shall  reach  the  age  of  sixteen 
years,  but  the  total  monthly  payment  shall  not  exceed  $35.00,  and  any 
deficit  shall  be  deducted  proportionately  among  the  beneficiaries. 

(3)  If  the  workman  leaves  no  widow,  widower,  or  child  under  the  age  of 
sixteen  years,  but  leaves  a  dependent  or  dependents,  a  monthly  payment 
shall  be  made  to  each  dependent  equal  to  fifty  per  cent,  of  the  average 
monthly  support  actually  received  by  such  dependent  from  the  work- 
man during  the  twelve  months  next  preceding  the  occurrence  of  the  in- 
jury, but  the  total  payment  to  all  dependents  in  any  case  shall  not  exceed 
$20.00  per  month.  If  any  dependent  is  under  the  age  of  sixteen  years 
at  the  time  of  the  occurrence  of  the  injury,  the  payment  to  such  dependent 
shall  cease  when  such  dependent  shall  reach  the  age  of  sixteen  years. 
The  payment  to  any  dependent  shall  cease  if  and  when,  under  the  same 
circumstances,  the  necessity  creating  the  dependency  would  have  ceased 
if  the  injury  had  not  happened. 

If  the  workman  is  under  the  age  of  twenty-one  j^ears  and  unmarried  at 
the  time  of  his  death,  the  parents  or  parent  of  the  workman  shall  receive 
$20.00  per  month  for  each  month  after  his  death  until  the  time  at  which 
he  would  have  arrived  at  the  age  of  twenty-one  years. 

(4)  In  the  event  a  surviving  spouse  receiving  monthly  payments  shall 
die,  leaving  a  child  or  children  under  the  age  of  sixteen  years,  the  sum  he 
or  she  shall  be  receiving  on  account  of  such  child  or  children  shall  be  there- 
after, until  such  child  shall  arrive  at  the  age  of  sixteen  years,  paid  to  the 
child  increased  100  per  cent.,  but  the  total  to  all  children  shall  not  exceed 
the  sum  of  thirty-five  dollars  per  month. 

(b)  Permanent  total  disability  means  the  loss  of  both  legs  or  both  arras, 
or  one  leg  and  one  arm,  total  loss  of  eyesight,  paralysis  or  other  condition 
permanently  incapacitating  the  workman  from  performing  any  work  at 
any  gainful  occupation. 

When  permanent  total  disability  results  from  the  injury  the  workman 
shall  receive  monthly  during  the  period  of  such  disability: 

(1)  If  unmarried  at  the  time  of  the  injury,  the  sum  of  $20.00. 

(2)  If  the  workman  have  a  wife  or  invalid  husband,  but  no  child  under 
the  age  of  sixteen  years,  the  sum  of  $25.00.  If  the  husband  is  not  an 
invalid,  the  monthly  payment  of  $25.00  shall  be  reduced  to  $15.00. 

(3)  If  the  workman  have  a  wife  or  husband  and  a  child  or  children  under 
the  age  of  sixteen  years,  or,  being  a  widow  or  widower,  have  any  such 
child  or  children,  the  monthly  payment  provided  in  the  preceding  para- 
graph shall  be  increased  by  five  dollars  for  each  such  child  until  such 
child  shall  arrive  at  the  age  of  sixteen  years,  but  the  total  monthly  pay- 
ment shall  not  exceed  thirty-five  dollars. 

(c)  If  the  injured  workman  die  during  the  period  of  total  disability, 
whatever  the  cause  of  death,  leaving  a  widow,  invalid  widower  or  child 
under  the  age  of  sixteen  years,  the  surviving  widow  or  invalid  widower 
shall  receive  twenty  dollars  per  month  until  death  or  remarriage,  to  be 
increased  five  dollars  per  month  for  each  child  under  the  age  of  sixteen 


292 

years  until  such  child  shall  arrive  at  the  age  of  sixteen  years;  but  if  such 
child  is  or  shall  be  without  father  or  mother,  such  child  shall  receive  ten 
dollars  per  month  until  arriving  at  the  age  of  sixteen  years.  The  total 
combined  monthly  payment  under  this  paragraph  shall  in  no  case  exceed 
thirty-five  dollars.  Upon  remarriage  the  payments  on  account  of  a 
child  or  children  shall  continue  as  before  to  the  child  or  children. 

(d)  When  the  total  disability  is  only  temporary,  the  schedule  of  pay- 
ment contained  in  paragraphs  (1),  (2)  and  (3)  of  the  foregoing  subdivi- 
sion (d)  shall  apply  so  long  as  the  total  disability  shall  continue,  increased 
50  per  cent,  for  the  first  six  months  of  such  continuance,  but  in  no  case 
shall  the  increase  operate  to  make  the  monthly  payment  exceed  sixty  per 
cent,  of  the  monthly  wage  (the  daily  wage  multiplied  by  twenty-six)  the 
workman  was  receiving  at  the  time  of  his  injury.  As  soon  as  recovery  is 
so  complete  that  the  present  earning  power  of  the  workman,  at  any  kind 
of  work,  is  restored  to  that  existing  at  the  time  of  the  occurrence  of  the 
injury  the  payments  shall  cease.  If  and  so  long  as  the  present  earning 
power  is  only  partially  restored  the  payments  shall  continue  in  the  pro- 
portion which  the  new  earning  power  shall  bear  to  the  old.  No  compensa- 
tion shall  be  payable  out  of  the  accident  fund  unless  the  loss  of  earning 
power  shall  exceed  five  per  cent. 

(e)  For  every  case  of  injury  resulting  in  death  or  permanent  total  dis- 
abiUty  it  shall  be  the  duty  of  the  department  to  forthwith  notify  the 
state  treasurer,  and  he  shall  set  apart  out  of  the  accident  fund  a  sum  of 
money  for  the  case,  to  be  known  as  the  estimated  lump  value  of  the 
monthly  payments  provided  for  it,  to  be  calculated  upon  the  theory  that 
a  monthly  payment  of  twenty  dollars,  to  a  person  thirty  years  of  age,  is 
equal  to  a  lump  sum  payment,  according  to  the  expectancy  of  life  as 
fixed  by  the  American  MortaHty  Table,  of  four  thousand  dollars,  but  the 
total  in  no  case  to  exceed  the  sum  of  four  thousand  dollars.  The  state 
treasurer  shall  invest  said  sum  at  interest  in  the  class  of  securities  pro- 
vided by  law  for  the  investment  of  the  permanent  school  fund,  and  out 
of  the  same  and  its  earnings  shall  be  paid  the  monthly  installments  and 
any  lump  sum  payment  then  or  thereafter  arranged  for  the  case.  Any 
deficiency  shall  be  made  good  out  of,  and  any  balance  or  overplus  shall 
revert  to  the  accident  fund.  The  state  treasurer  shall  keep  accurate 
account  of  all  such  segregations  of  the  accident  fund,  and  may  borrow 
from  the  main  fund  to  meet  monthly  pajmients  pending  conversion  into 
cash  of  any  security,  and  in  such  case  shall  repay  such  temporary  loan 
out  of  the  cash  realized  from  the  security. 

(f)  Permanent  partial  disability  means  the  loss  of  either  one  foot,  one 
leg,  one  hand,  one  arm,  one  eye,  one  or  more  fingers,  one  or  more  toes, 
any  dislocation  where  ligaments  are  severed,  or  any  other  injury  known 
in  surgery  to  be  permanent  partial  disability.  For  any  permanent  par- 
tial disability  resulting  from  an  injury,  the  workman  shall  receive  com- 
pensation in  a  lump  sum  in  an  amount  equal  to  the  extent  of  the  injury, 
to  be  decided  in  the  first  instance  by  the  department,  but  not  in  any  case 


293 

to  exceed  the  sum  of  $1,500.00.  The  loss  of  one  major  arm  at  or  above 
the  elbow  shall  be  deemed  the  maximum  permanent  partial  disability. 
Compensation  for  any  other  permanent  partial  disabihty  shall  be  in  the 
proportion  which  the  extent  of  such  disability  shall  bear  to  the  said  maxi- 
mum. If  the  injured  workman  be  under  the  age  of  twenty-one  years  and 
unmarried,  the  parents  or  parent  shall  also  receive  a  limip  sum  payment 
equal  to  ten  per  cent,  of  the  amount  awarded  the  minor  workman. 

(g)  Should  a  fm'ther  accident  occur  to  a  workman  already  receiving  a 
monthly  payment  under  this  section  for  a  temporary  disability,  or  who 
has  been  previously  the  recipient  of  a  lump  sum  payment  under  this  act, 
his  future  compensation  shall  be  adjusted  according  to  the  other  provi- 
sions of  this  section  and  with  regard  to  the  combined  effect  of  his  injuries, 
and  his  past  receipt  of  money  under  this  act. 

(h)  If  aggravation,  diminution,  or  termination  of  disability  takes  place 
or  be  discovered  after  the  rate  of  compensation  shall  have  been  estabhshed 
or  compensation  terminated  in  any  case  the  department  may,  upon  the 
application  of  the  beneficiary  or  upon  its  own  motion,  readjust  for  future 
application  the  rate  of  compensation  in  accordance  with  the  rules  in  this 
section  provided  for  the  same,  or  in  a  proper  case  terminate  the  pay- 
ments, 

(i)  A  husband  or  wife  of  an  injured  workman,  living  in  a  state  of  aban- 
donment for  more  than  one  year  at  the  time  of  the  injury  or  subsequently, 
shall  not  be  a  beneficiary  under  this  act. 

(j)  If  a  beneficiary  shall  reside  or  remove  out  of  the  state  the  depart- 
ment may,  in  its  discretion,  convert  any  monthly  payments  provided  for 
such  case  into  a  lump  sum  payment  (not  in  any  case  to  exceed  $4,000.00) 
upon  the  theory,  according  to  the  expectancy  of  life  as  fixed  by  the  Ameri- 
can Mortality  Table,  that  a  monthly  payment  of  $20.00  to  a  person  thirty 
years  of  age  is  worth  $4,000.00,  or,  with  the  consent  of  the  beneficiary,  for  a 
smaller  sum. 

(k)  Any  court  review  under  this  section  shall  be  initiated  in  the  county 
where  the  workman  resides  or  resided  at  the  time  of  the  injury,  or  in 
which  the  injury  occurred. 

Sec.  6.    Intentional  Injuries  —  Status  of  Minors, 

If  injury  or  death  results  to  a  workman  from  the  deliberate  intention 
of  the  workman  himself  to  produce  such  injury  or  death,  neither  the  work- 
man nor  the  widow,  widower,  child  or  dependent  of  the  workman  shall 
receive  any  payment  whatsoever  out  of  the  accident  fund.  If  injury  or 
death  results  to  a  workman  from  the  deliberate  intention  of  his  employer 
to  produce  such  injury  or  death,  the  workman,  the  widow,  widower,  child 
or  dependent  of  the  workman  shall  have  the  privilege  to  take  under  this 
act  and  also  have  cause  of  action  against  the  employer,  as  if  this  act  had 
not  been  enacted,  for  any  excess  of  damage  over  the  amount  received  or 
receivable  under  this  act. 

A  minor  working  at  an  age  legally  permitted  under  the  laws  of  this 
state  shall  be  deemed  sui  juris  for  the  purpose  of  this  act,  and  no  other 


294 

person  shall  have  any  cause  of  action  or  right  to  compensation  for  an 
injury  to  such  minor  workman  except  as  expressly  provided  in  this  act, 
but  in  the  event  of  a  lump  sum  payment  becoming  due  under  this  act  to 
such  minor  workman,  the  management  of  the  sum  shall  be  within  the 
probate  jurisdiction  of  the  courts  the  same  as  other  property  of  minors. 

Sec.  7.    Conversion  into  Lump  Sum  Payment. 

In  case  of  death  or  permanent  total  disability  the  monthly  payment 
provided  may  be  converted,  in  whole  or  in  part,  into  a  lump  sum  payment 
(not  in  any  case  to  exceed  $4,000,000),  on  the  theory,  according  to  the 
expectancy  of  life  as  fixed  by  the  American  Mortality  Table,  that  a 
monthly  payment  of  $20.00  to  a  person  thirty  years  of  age  is  worth  the 
sum  of  $4,000.00,  in  which  event  the  monthly  payment  shall  cease  in 
whole  or  in  part  accordingly  or  proportionately.  Such  conversion  may 
only  be  made  after  the  happening  of  the  injury  and  upon  the  written 
application  of  the  beneficiary  (in  case  of  minor  children,  the  application 
may  be  by  either  parent)  to  the  department,  and  shall  rest  in  the  dis- 
cretion of  the  department.  Within  the  rule  aforesaid  the  amount  and 
value  of  the  lump  sum  pa5Tiient  may  be  agreed  upon  between  the  depart- 
ment and  the  beneficiary. 

Sec.  8.    Defaulting  Employers. 

If  any  employer  shall  default  in  any  payment  to  the  accident  fund 
hereinbefore  in  this  act  required,  the  sum  due  shall  be  coUected  by  action 
at  law  in  the  name  of  the  state  as  plaintiff,  and  such  right  of  action  shall 
be  in  addition  to  any  other  right  of  action  or  remedy.  In  respect  to  any 
injury  happening  to  any  of  his  workmen  during  the  period  of  any  default 
in  the  pa3^Tnent  of  any  premium  under  section  4,  the  defaulting  employer 
shall  not,  if  such  default  be  after  demand  for  payment,  be  entitled  to  the 
benefits  of  this  act,  but  shall  be  liable  to  suit  by  the  injured  workman 
(or  the  husban4,  wife,  child  or  dependent  of  such  workman  in  case  death 
result  from  the  accident),  as  he  would  have  been  prior  to  the  passage  of 
this  act. 

In  case  the  recovery  actually  collected  in  such  suit  shall  equal  or  exceed 
the  compensation  to  which  the  plaintiff  therein  would  be  entitled  under 
this  act,  the  plaintiff  shall  not  be  paid  anything  out  of  the  accident  fund; 
if  the  said  amount  shall  be  less  than  such  compensation  under  this  act, 
the  accident  fund  shall  contribute  the  amount  of  the  deficiency.  The 
person  so  entitled  under  the  provisions  of  this  section  to  sue  shall  have 
the  choice  (to  be  exercised  before  suit)  of  proceeding  by  suit  or  taking 
under  this  act.  If  such  person  shall  take  under  this  act,  the  cause  of 
action  against  the  employer  shall  be  assigned  to  the  state  for  the  benefit 
of  the  accident  fund.  In  any  suit  brought  upon  such  cause  of  action  the 
defense  of  fellow  servant  and  assumption  of  risk  shall  be  inadmissible, 
and  the  doctrine  of  comparative  negligence  shall  obtain.  Any  such  cause 
of  action  assigned  to  the  state  may  be  prosecuted  or  compromised  by  the 
department  in  its  discretion.  Any  compromise  by  the  workman  of  any 
such  suit,  which  would  leave  a  deficiency  to  be  made  good  out  of  the 


295 

accident  fund,  may  be  made  only  with  the  written  approval  of  the  de- 
partment. 

Sec.  9.    Employer's  Responsibility  for  Safeguard. 

If  any  workman  shall  be  injured  because  of  the  absence  of  any  safe- 
guard or  protection  required  to  be  provided  or  maintained  by,  or  pursuant 
to,  any  statute  or  ordinance,  or  any  departmental  regulation  under  any 
statute,  or  be,  at  the  time  of  the  injury,  of  less  than  the  maximum  age 
prescribed  by  law  for  the  employment  of  a  minor  in  the  occupation  in 
which  he  shall  be  engaged  when  injured,  the  employer  shall,  within  ten 
days  after  demand  therefor  by  the  department,  pay  into  the  accident 
fund,  in  addition  to  the  same  required  by  section  4  to  be  paid: 

(a)  In  case  the  consequent  payment  to  the  workman  out  of  the  acci- 
dent fund  be  a  lump  sum,  a  sum  equal  to  50  per  cent,  of  that  amount. 

(b)  In  case  the  consequent  pajTnent  to  the  workman  be  payable  in 
monthly  payments,  a  sum  equal  to  50  per  cent,  of  the  lump  value  of 
such  monthly  payment,  estimated  in  accordance  with  the  rule  stated  in 
section  7. 

The  foregoing  provisions  of  this  act  shall  not  apply  to  the  employer  if 
the  absence  of  such  guard  or  protection  be  due  to  the  removal  thereof  by 
the  injured  workman  himself  or  with  his  knowledge  by  any  of  his  fellow 
workmen,  unless  such  removal  be  by  order  or  direction  of  the  employer 
or  superintendent  or  foreman  of  the  employer,  or  any  one  placed  by  the 
employer  in  control  or  direction  of  such  workman.  If  the  removal  of 
such  guard  or  protection  be  by  the  workman  himself  or  with  his  consent 
by  any  of  his  fellow  workmen,  unless  done  by  order  or  direction  of  the 
employer  or  the  superintendent  or  foreman  of  the  employer,  or  any  one 
placed  by  the  employer  in  control,  or  direction  of  such  workman,  the 
schedule  of  compensation  provided  in  section  5  shall  be  reduced  10  per 
cent,  for  the  individual  case  of  such  workman. 

Sec.  10.    Exemption  of  Awards. 

No  money  paid  or  payable  under  this  act  put  of  the  accident  fund  shall, 
prior  to  issuance  and  delivery  of  the  warrant  therefor,  be  capable  of  being 
assigned,  charged,  nor  ever  be  taken  in  execution  or  attached  or  garnished, 
nor  shall  the  same  pass  to  any  other  person  by  operation  of  law.  Any 
such  assignment  or  charge  shall  be  void. 

Sec.  11.    Non-Waiver  of  Act  by  Contract. 

No  employer  or  workman  shall  exempt  himself  from  the  burden  or 
waive  the  benefits  of  this  act  by  any  contract,  agreement,  rule  or  regu- 
lation, and  any  such  contract,  agreement,  rule  or  regulation  shall  be  pro 
tanto  void.  • 

Sec.  12.    Filing  Claim  for  Compensation. 

(a)  Where  a  workman  is  entitled  to  compensation  under  this  act  he 
shall  file  with  the  department,  his  application  for  such,  together  with  the 
certificate  of  the  physician  who  attended  him,  and  it  shall  be  the  duty  of 
the  physician  to  inform  the  injured  workman  of  his  rights  under  this  act 
and  to  lend  all  necessary  assistance  in  making  this  application  for  com- 


296 

pensation  and  such  proof  of  other  matters  as  required  by  the  rules  of  the 
department  without  charge  to  the  workman. 

(b)  Where  death  results  from  injury  the  parties  entitled  to  compensa- 
tion under  this  act,  or  some  one  in  their  behalf,  shall  make  application 
for  the  same  to  the  department,  which  application  must  be  accompanied 
with  proof  of  death  and  proof  of  relationship  showing  the  parties  to  be 
entitled  to  compensation  under  this  act,  certificates  of  attending  phj^si- 
cian,  if  any,  and  such  other  proof  as  required  by  the  rules  of  the  depart- 
ment. 

(c)  If  change  of  circumstance  warrant  an  increase  or  rearrangement  of 
compensation,  like  application  shall  be  made  therefor.  No  increase  or 
rearrangement  shall  be  operative  for  any  period  prior  to  application 
therefor. 

(d)  No  application  shall  be  valid  or  claim  thereunder  enforceable  unless 
filed  within  one  year  after  the  day  upon  wliich  the  injury  occurred  or 
the  right  thereto  accrued. 

Sec.  13.    Medical  Examination. 

Any  workman  entitled  to  receive  compensation  under  this  act  is  re- 
quired, if  requested  by  the  department,  to  submit  himself  for  medical 
examination  at  a  time  and  from  time  to  time  at  a  place  reasonably  con- 
venient for  the  workman  and  as  may  be  provided  by  the  rules  of  the 
department.  If  the  workman  refuses  to  submit  to  any  such  examina- 
tion, or  obstructs  the  same,  his  rights  to  monthly  payments  shall  be 
suspended  until  such  examination  has  taken  place,  and  no  compensation 
shall  be  payable  during  or  for  account  of  such  period. 

Sec.  14.    Notice  of  Accident. 

Whenever  any  accident  occurs  to  any  workman  it  shall  be  the  duty  of 
the  employer  to  at  once  report  such  accident  and  the  injury  resulting 
therefrom  to  the  department,  and  also  to  any  local  representative  of  the 
department.    Such  report  shall  state: 

1.  The  time,  cause  and  nature  of  the  accident  and  injuries,  and  the 
probable  duration  of  the  injury  resulting  therefrom. 

2.  Whether  the  accident  arose  out  of  or  in  the  course  of  the  injured 
person's  employment. 

3.  Any  other  matters  the  rules  and  regulations  of  the  department  may 
prescribe. 

Sec.  15.    Inspection  of  Employer's  Books. 

The  books,  records  and  pay  rolls  of  the  employer  pertinent  to  the  ad- 
ministration of  this  act  shall  always  be  open  to  the  inspection  by  the 
department  or  its  traveling  auditor,  agent  or  assistant,  for  the  purpose 
of  ascertaining  the  correctness  of  the  pay  roll,  the  men  employed,  and 
such  other  information  as  may  be  necessary  for  the  department  and  its 
management  under  this  act.  Refusal  on  the  part  of  the  employer  to 
submit  said  books,  records  and  pay  rolls  for  such  inspection  to  any  mem- 
ber of  the  commission,  or  any  assistant  presenting  written  authority  from 
the  commission,  shall  subject  the  offending  employer  to  a  penalty  of  one 


297 

hundred  dollars  for  each  offense,  to  be  collected  by  civil  action  in  the  name 
of  the  state  and  paid  into  the  accident  fund,  and  the  individual  who  shall 
personally  give  such  refusal  shall  be  guilty  of  a  misdemeanor. 

Sec.  16.    Penalty  for  Misrepresentation  as  to  Pay  Roll. 

Any  employer  who  shall  misrepresent  to  the  department  the  amount 
of  pay  roll  upon  which  the  premiimfi  under  this  -act  is  based  shall  be  liable 
to  the  state  in  ten  times  the  amount  of  the  difference  in  premium  paid 
and  the  amount  the  employer  should  have  paid.  The  liability  to  the 
state  under  this  section  shall  be  enforced  in  a  civil  action  in  the  name  of 
the  state.  All  sums  collected  under  this  section  shall  be  paid  into  the 
accident  fund. 

Sec.  17.    Public  and  Contract  Work. 

Whenever  the  state,  county  or  any  municipal  corporation  shall  engage 
in  any  extra  hazardous  work  in  which  workmen  are  employed  for  wages, 
this  act  shall  be  applicable  thereto.  The  employer's  payments  into  the 
accident  fund  shall  be  made  from  the  treasury  of  the  state,  county  or 
municipahty.  If  said  work  is  being  done  by  contract,  the  pay  roll  of 
the  contractor  and  the  sub-contractor  shall  be  the  basis  of  computation, 
and  in  the  case  of  contract  work  consuming  less  than  one  year  in  perform- 
ance the  required  payment  into  the  accident  fund  shall  be  based  upon 
the  total  pay  roll.  The  contractor  and  any  sub-contractor  shall  be  sub- 
ject to  the  provisions  of  the  act,  and  the  state  for  its  general  fund,  the 
county  or  municipal  corporation  shall  be  entitled  to  collect  from  the  con- 
tractor the  full  amount  payable  to  the  accident  fund,  and  the  contractor, 
in  turn  shall  be  entitled  to  collect  from  the  sub-contractor  his  proportion- 
ate amount  of  the  pajmient.  The  provisions  of  this  section  shall  apply 
to  all  extra  hazardous  work  done  by  contract,  except  that  in  private 
work  the  contractor  shall  be  responsible,  primarily  and  directly,  to 
the  accident  fund  for  the  proper  percentage  of  the  total  pay  roll  of  the 
work  and  the  owner  of  the  property  affected  by  the  contract  shall  be 
surety  for  such  payments.  Whenever  and  so  long  as,  by  state  law,  city 
charter  or  municipal  ordinance,  provision  is  made  for  municipal  employes 
injured  in  the  course  of  employment,  such  employes  shall  not  be  entitled 
to  the  benefits  of  this  act  and  shall  not  be  included  in  the  pay  roll  of  the 
municipality  under  this  act. 

Sec.  18.    Interstate  Commerce. 

The  provisions  of  this  act  shall  apply  to  employers  and  workmen  en- 
gaged in  intrastate  and  also  in  interstate  or  foreign  commerce,  for  whom 
a  rule  of  liability  or  method  of  compensation  has  been  or  may  be  estab- 
lished by  the  Congress  of  the  United  States,  only  to  the  extent  that  their 
mutual  connection  with  intrastate  work  may  and  shall  be  clearly  sepa- 
rable and  distinguishable  from  interstate  or  foreign  conamerce,  except 
that  any  such  employer  and  any  of  his  workmen  working  only  in  this 
state  may,  with  the  approval  of  the  department,  and  so  far  as  not  for- 
bidden by  any  act  of  Congress,  voluntarily  accept  the  provisions  of  this 
act  by  filing  written  acceptances  with  the  department.     Such  accept- 


298 

ances,  when  filed  with  and  approved  by  the  department,  shall  subject 
the  acceptors  irrevocably  to  the  pro\asions  of  this  act  to  all  intents  and 
purposes  as  if  they  had  been  originally  included  in  its  terms.  Payment 
of  premium  shall  be  on  the  basis  of  the  payroll  of  the  workmen  who  accept 
as  aforesaid. 

Sec.  19.    Elective  Adoption  of  Act. 

Any  employer  and  his  employes  engaged  in  works  not  extra  hazardous 
may,  by  their  joint  election,  filed  with  the  department,  accept  the  pro- 
visions of  this  act,  and  such  acceptances,  when  approved  by  the  depart- 
ment, shall  subject  them  irrevocably  to  the  provisions  of  this  act  to  all 
intents  and  purposes  as  if  they  had  been  originally  included  in  its  terms. 
Ninety  per  cent,  of  the  minimum  rate  specified  in  section  4  shall  be  appli- 
cable to  such  case  until  otherwise  provided  by  law. 

Sec.  20.    Court  Review. 

Any  employer,  workman,  beneficiary,  or  person  feeling  aggrieved  at 
any  decision  of  the  department  affecting  his  interests  under  this  act  may 
have  the  same  reviewed  by  a  proceeding  for  that  purpose,  in  the  nature 
of  an  appeal,  initiated  in  the  superior  court  of  the  county  of  his  residence 
(except  as  otherwise  provided  in  subdivision  (1)  of  section  numbered  5) 
in  so  far  as  such  decision  rests  upon  questions  of  fact,  or  of  the  proper 
application  of  the  provisions  of  this  act,  it  being  the  intent  that  matters 
resting  in  the  discretion  of  the  department  shall  not  be  subject  to  review. 
The  proceedings  in  every  such  appeal  shall  be  informal  and  summary, 
but  full  opportunity  to  be  heard  shall  be  had  before  judgment  is  pro- 
nounced. No  such  appeal  shall  be  entertained  unless  notice  of  appeal 
shall  have  been  served  by  mail  or  personally  upon  some  member  of  the 
commission  within  twenty  days  following  the  rendition  of  the  decision 
appealed  from  and  communication  thereof  to  the  person  affected  thereby. 
No  bond  shall  be  required,  except  that  on  appeal  by  the  employer  from 
a  decision  of  the  department  under  section  9  shall  be  ineffectual  unless, 
within  five  days  following  the  service  of  notice  thereof,  a  bond,  with 
surety  satisfactory  to  the  court,  shall  be  filed,  conditioned  to  perform  the 
judgment  of  the  court.  Except  in  the  case  last  named  an  appeal  shall 
not  be  a  stay.  The  calling  of  a  jury  shall  rest  in  the  discretion  of  the 
court  except  that  in  cases  arising  under  sections  9,  15  and  16  either  party 
shall  be  entitled  to  a  jury  trial  upon  demand.  It  shall  be  unlawful  for 
any  attorney  engaged  in  any  such  appeal  to  charge  or  receive  any  fee 
therein  in  excess  of  a  reasonable  fee,  to  be  fixed  bj"^  the  court  in  the  case, 
and,  if  the  decision  of  the  department  shall  be  reversed  or  modified,  such 
fee  and  the  fees  of  medical  and  other  witnesses  and  the  costs  shall  be 
payable  out  of  the  administration  fund,  if  the  accident  fund  is  affected 
by  the  litigation.  In  other  respects  the  practice  in  civil  cases  shall  apply. 
Appeal  shall  lie  from  the  judgment  of  the  superior  court  as  in  other  civil 
cases.  The  attorney  general  shall  be  the  legal  adviser  of  the  department 
and  shall  represent  it  in  all  proceedings,  whenever  so  requested  by  any 
of  the  commissioners.    In  all  court  proceedings  under  or  pursuant  to  this 


299 

act  the  decision  of  the  department  shall  be  prima  facie  correct,  and  the 
burden  of  proof  shall  be  upon  the  party  attacking  the  same. 

Sec.  21.    Creation  of  Department. 

The  administration  of  this  act  is  imposed  upon  a  department,  to  be 
known  as  the  Industrial  Insurance  Department,  to  consist  of  three  com- 
missioners to  be  appointed  by  the  governor.  One  of  them  shall  hold 
office  for  the  first  two  years,  another  for  the  first  four  years,  and  another 
for  the  first  six  years  following  the  passage  and  approval  of  this  act. 
Thereafter  the  term  shall  be  six  years.  Each  commissioner  shall  hold 
until  his  successor  shall  be  appointed  and  shall  have  qualified.  A  deci- 
sion of  any  question  arising  under  this  act  concurred  in  by  two  of  the 
commissioners  shall  be  the  decision  of  the  department.  The  governor 
may  at  any  time  remove  any  commissioner  from  office  in  his  discretion, 
but  within  ten  days  following  any  such  removal  the  governor  shall  file 
in  the  office  of  the  secretary  of  state  a  statement  of  his  reasons  therefor. 
The  commission  shall  select  one  of  their  members  as  chairman.  The  main 
office  of  the  commission  shall  be  at  the  state  capitol,  but  branch  offices 
may  be  established  at  other  places  in  the  state.  Each  member  of  the 
commission  shall  have  power  to  issue  subpoenas  requiring  the  attendance 
of  witnesses  and  the  production  of  books  and  documents. 

Sec.  22.     Salary  of  Commissioners. 

The  salary  of  each  of  the  commissioners  shall  be  thirty-six  hundred 
dollars  per  annum,  and  he  shall  be  allowed  his  actual  and  necessary  travel- 
ing and  incidental  expenses;  and  any  assistant  to  the  commissioners 
shall  be  paid  for  each  full  days  service  rendered  by  him,  his  actual  and 
necessary  traveling  expenses  and  such  compensation  as  the  commission 
may  deem  proper,  not  to  exceed  six  dollars  per  day  to  an  auditor,  or  five 
dollars  per  day  to  any  other  assistant. 

Sec.  23.    Deputies  and  Assistants. 

The  commissioners  may  appoint  a  sufficient  number  of  auditors  and 
assistants  to  aid  them  in  the  administration  of  this  act,  at  an  expense 
not  to  exceed  S5,000.00  per  month.  They  may  employ  one  or  more 
phj^sicians  in  each  county  for  the  purpose  of  official  medical  examinations, 
whose  compensation  shall  be  Umited  to  five  dollars  for  each  examination 
and  report  therein.  They  may  procure  such  record  books  as  they  may 
deem  necessary  for  the  record  of  the  financial  transactions  and  statistical 
data  of  the  department,  and  the  necessary  documents,  forms  and  blanks. 
They  may  establish  and  require  all  employers  to  install  and  maintain  an 
uniform  form  of  pay  roll. 

Sec.  24.    Conduct,  Management  and  Supervision  of  Department. 

The  commission  shall,  in  accordance  with  the  provisions  of  this  act: 

1.  Estabhsh  and  promulgate  rules  governing  the  administration  of  this  act. 

2.  Ascertain  and  establish  the  amounts  to  be  paid  into  and  out  of  the 
accident  fund. 

3.  Regulate  the  proof  of  accident  and  extent  thereof,  the  proof  of 
death  and  the  proof  of  relationship  and  the  extent  of  dependency. 


300 

4.  Supervise  the  medical,  surgical  and  hospital  treatment  to  the  intent 
that  same  may  be  in  all  cases  suitable  and  wholesome. 

5.  Issue  proper  receipts  for  moneys  received,  and  certificates  for  bene- 
fits accrued  and  accruing. 

6.  Investigate  the  cause  of  all  serious  injuries  and  report  to  the  governor 
from  time  to  time  any  violations  or  laxity  in  performance  of  protective 
statutes  or  regulations  coming  under  the  observation  of  the  depart- 
ment. 

7.  Compile  and  preserve  statistics  showing  the  number  of  accidents 
occiu'ring  in  the  establishment  or  works  of  each  employer,  the  liabilities 
and  expenditures  of  the  accident  fimd  on  account  of,  and  the  premium 
collected  from  the  same,  and  hospital  charges  and  expenses. 

8.  Make  armual  reports  to  the  governor  (one  of  them  not  more  than 
sixty  nor  less  than  thirty  days  prior  to  each  regular  session  of  the  legis- 
lature) of  the  workings  of  the  department,  and  showing  the  financial 
status  and  the  outstanding  obligations  of  the  accident  fund,  and  the 
statistics  aforesaid. 

Sec.  25.    Medical  Witnesses. 

Upon  the  appeal  of  any  workman  from  any  decision  of  the  department 
affecting  the  extent  of  his  injuries  or  the  progress  of  the  same,  the  court 
may  appoint  not  to  exceed  three  physicians  to  examine  the  physical  con- 
dition of  the  appellant,  who  shall  make  to  the  court  their  report  thereon, 
and  they  may  be  interrogated  before  the  court  by  or  on  behalf  of  the 
appellant  in  relation  to  the  same.  The  fee  of  each  shall  be  fixed  by  the 
court,  but  shall  not  exceed  ten  dollars  per  day  each. 

Sec.  26.    Disbursement  of  Funds. 

Disbursement  out  of  the  funds  shall  be  made  only  upon  warrants  drawn 
by  the  state  auditor  upon  vouchers  therefor  transmitted  to  him  by  the 
department  and  audited  by  him.  The  state  treasurer  shall  pay  every 
warrant  out  of  the  fund  upon  which  it  is  drawn.  If,  at  any  time,  there 
shall  not  bo  sufficient  money  in  the  fund  on  which  any  such  warrant  shall 
have  been  drawn  wherewith  to  pay  the  same,  the  employer  on  account 
of  whose  workman  it  was  that  the  warrant  was  drawn  shall  pay  the  same, 
and  he  shall  be  credited  upon  his  next  following  contribution  to  such 
fund  the  amount  so  paid  with  interest  thereon  at  the  legal  rate  from  the 
date  of  such  payment  to  the  date  such  next  following  contribution  became 
payable,  and  if  the  amount  of  the  credit  shall  exceed  the  amount  of  the 
contribution,  he  shall  have  a  warrant  upon  the  same  fund  for  the  excess, 
and  if  any  such  warrant  shall  not  be  so  paid,  it  shall  remain,  neverthe- 
less, payable  out  of  the  fund.  The  state  treasurer  shall  to  such  extent  as 
shall  appear  to  him  to  be  advisable  keep  the  moneys  of  the  unsegregated 
portion  of  the  accident  fund  invested  at  interest  in  the  class  of  securities 
provided  by  law  for  the  investment  of  the  permanent  school  fund.  The 
state  treasurer  shall  be  liable  on  his  official  bond  for  the  safe  custody  of 
the  moneys  and  securities  of  the  accident  fund,  but  all  the  provisions 
of  an  act  approved  February  21,  1907,  entitled  "An  act  to  provide  for 


301 

state  depositories  and  to  regulate  the  deposits  of  state  moneys  therein," 
shall  be  apphed  to  said  moneys  and  the  handling  thereof  by  the  state 
treasm'er. 

Sec.  27.     Test  of  Invalidittj  of  Ad. 

If  any  employer  shall  be  adjudicated  to  be  outside  the  lawful  scope  of 
this  act,  the  act  shall  not  apply  to  him  or  his  workman,  or  if  any  work- 
man shall  be  adjudicated  to  be  outside  the  lawful  scope  of  this  act  be- 
cause of  remoteness  of  his  work  from  the  hazard  of  his  employer's  work, 
any  such  adjudication  shall  not  impair  the  validity  of  this  act  in  other 
respects,  and  in  every  such  case  an  accounting  in  accordance  with  the 
justice  of  the  case  shall  be  had  of  moneys  received.  If  the  provisions  of 
section  4  of  this  act  for  the  creation  of  the  accident  fund,  or  the  provisions 
of  this  act  making  the  compensation  to  the  workman  provided  in  it  exclu- 
sive of  any  other  remedy  on  the  part  of  the  workman  shall  be  held  invalid 
the  entire  act  shall  be  thereby  invalidated  except  the  provisions  of  sec- 
tion 31,  and  an  accounting  according  to  the  justice  of  the  case  shall  be 
had  of  moneys  received.  In  other  respects  an  adjudication  of  invalidity 
of  any  part  of  this  act  shall  not  affect  the  validity  of  the  act  as  a  whole 
or  any  other  part  thereof. 

Sec.  28.    Statute  of  Limitations  Saved. 

If  the  provisions  of  this  act  relative  to  compensation  for  injuries  to  or 
death  of  workmen  become  invalid  because  of  any  adjudication,  or  be 
repealed,  the  period  intervening  between  the  occurrence  of  an  injury  or 
death,  not  previously  compensated  for  under  this  act  by  lump  payment 
or  completed  monthly  payments,  and  such  repeal  or  the  rendition  of  the 
final  adjudication  of  the  invalidity  shall  not  be  computed  as  a  part  of 
the  time  limited  by  law  for  the  commencement  of  any  action  relating  to 
such  injury  or  death:  Provided,  That  such  action  be  commenced  within 
one  year  after  such  repeal  or  adjudication;  but  in  any  such  action  any 
sum  paid  out  of  the  accident  fund  to  the  workman  on  account  of  injury, 
to  whom  the  action  is  prosecuted,  shall  be  taken  into  account  or  disposed 
of  as  follows:  If  the  defendant  employer  shall  have  paid  without  delin- 
quency into  the  accident  fund  the  payment  provided  by  section  4,  such 
sums  shall  be  credited  upon  the  recovery  as  payment  thereon,  otherwise 
the  sum  shall  not  be  so  credited  but  shall  be  deducted  from  the  sum  col- 
lected and  be  paid  into  the  said  fund  from  which  they  had  been  previously 
disbursed. 

Sec.  29.     Appropriations. 

There  is  hereby  appropriated  out  of  the  state  treasury  the  sum  of  one 
hundred  and  fifty  thousand  dollars,  or  so  much  thereof  as  may  be  neces- 
sary, to  be  known  as  the  administration  fund,  out  of  which  the  salaries, 
traveling  and  office  expenses  of  the  department  shall  be  paid,  and  also 
all  other  expenses  of  the  administration  of  the  accident  fund;  and  there 
is  hereby  appropriated  out  of  the  accident  fund  for  the  purpose  to  which 
said  fund  is  applicable  the  sum  of  $1,500,000.00,  or  so  much  thereof  as 
shall  be  necessary  for  the  purposes  of  this  act. 


302 

Sec.  30.     Safeguard  Regulations  Preserved. 

Nothing  in  this  act  contained  shall  repeal  any  existing  law  providing 
for  the  installation  or  maintenance  of  any  device,  means  or  method  for 
the  prevention  of  accidents  in  extra  hazardous  work  or  for  a  penalty  or 
punishment  for  failure  to  install  or  maintain  any  such  protective  device, 
means  or  method,  but  sections  8,  9,  and  10  of  the  act  approved  March  6, 
1905,  entitled:  "An  act  providing  for  the  protection  and  health  of  em- 
ployes in  factories,  mills  or  workshops,  where  machinery  is  used,  and 
providing  for  suits  to  recover  damages  sustained  by  the  violation  thereof, 
and  prescribing  a  punishment  for  the  violation  thereof  and  repealing  an 
act  entitled,  'An  act  providing  for  the  protection  of  employes  in  factories, 
mills,  or  workshops  where  machinery  is  used,  and  providing  for  the  pun- 
ishment of  the  violation  thereof,  approved  March  6,  1903,'  and  repealing 
all  other  acts  or  parts  of  acts  in  conflict  herewith,"  are  hereby  repealed, 
except  as  to  any  cause  of  action  which  shall  have  accrued  thereunder 
prior  to  October  1,  1911. 

Sec.  31.    Distribution  of  Funds  in  Case  of  Repeal. 

If  this  act  shall  be  hereafter  repealed,  all  moneys  which  are  in  the  acci- 
dent fund  at  the  time  of  the  repeal  shall  be  subject  to  such  disposition 
as  may  be  provided  by  the  legislature,  and  in  default  of  such  legislative 
provision  distribution  thereof  shall  be  in  accordance  with  the  justice  of 
the  matter,  due  regard  being  had  to  obligations  of  compensation  incurred 
and  existing. 

Sec.  32.    Saving  Clause. 

This  act  shall  not  affect  any  action  pending  or  cause  of  action  existing 
on  the  30th  day  of  September,  1911.  Approved  March  14,  1911. 


WISCONSIN. 

Laws  of  1911,  Chapter  50. 
An  Act  to  create  Sections  2394 — 1  to  2394 — 32  of  the  Statutes 
(to  be  included  in  a  New  Chapter  of  the  Statutes  to  be  num- 
bered Chapter  110a),  relating  to  the  Liability  of  Employers 
FOR  Injuries  or  Death  sustained  by  their  Employees,  providing 
FOR  Compensation  for  the  Accidental  Injury  or  Death  of  Em- 
ployees, establishing  an  Industrial  Accident  Board,  ^  defining 
its  Powers,  providing  for  a  Review  of  its  Awards,  and  making 
an  Appropriation  to  carry  out  the  Provisions  of  this  Act. 
The  people  of  the  State  of  Wisconsin,  represented  in  Senate  and  Assembly, 
do  enact  as  follows  : 
Section  1.    There  are  added  to  the  statutes  thirty-two  new  sections 
to  read:  Section  2394 — 1.    In  any  action  to  recover  damages  for  a  per- 
sonal injury  sustained  within  this  state  by  an  employee  while  engaged  in 

'  Superseded  (see  p.  309), 


303 

the  line  of  his  duty  as  such,  or  for  death  resulting  from  personal  injury 
so  sustained,  in  which  recovery  is  sought  upon  the  gx'ound  of  want  of 
ordinary  care  of  the  employer,  or  of  any  officer,  agent,  or  servant  of  the 
employer,  it  shall  not  be  a  defense : 

1.  That  the  employee  either  expressly  or  impliedly  assumed  the  risk 
of  the  hazard  complained  of. 

2.  When  such  employer  has  at  the  time  of  the  accident  in  a  common 
employment  four  or  more  employees,  that  the  injury  or  death  was  caused 
in  whole  or  in  part  by  the  want  of  ordinary  care  of  a  fellow  servant. 

Any  employer  who  has  elected  to  pay  compensation  as  hereinafter  pro- 
vided shall  not  be  subject  to  the  provisions  of  this  section  2394 — 1. 

Section  2394 — 2.  No  contract,  rule,  or  regulation,  shall  exempt  the 
employer  from  any  of  the  provisions  of  the  preceding  section  of  this  act. 

Section  2394 — 3.  Except  as  regards  employees  working  in  shops  or 
offices  of  a  railroad  company,  who  are  within  the  provisions  of  subsection 
9  of  section  1816  of  the  statutes,  as  amended  by  chapter  254  of  the  laws 
of  1907,  the  term  "employer"  as  used  in  the  two  preceding  sections  of 
this  act  shall  not  include  any  railroad  company  as  defined  in  subsection 
7  of  said  section  1816  as  amended,  said  section  1816  and  amendatory  acts 
being  continued  in  force  unaffected,  except  as  aforesaid,  by  the  preceding 
sections  of  this  act. 

Section  2394 — 4.  Liability  for  the  compensation  hereinafter  provided 
for,  in  lieu  of  any  other  liabiUty  whatsoever,  shall  exist  against  an  employer 
for  any  personal  injury  accidentally  sustained  by  his  employee,  and  for 
lys  death,  if  the  injury  shall  proximately  cause  death,  in  those  cases 
where  the  following  conditions  of  compensation  concur: 

1.  Where,  at  the  time  of  the  accident,  both  the  employer  and  employee 
are  subject  to  the  provisions  of  this  act  according  to  the  succeeding  sec- 
tions hereof. 

2.  Where,  at  the  time  of  the  accident,  the  employee  is  performing  serv- 
ice growing  out  of  and  incidental  to  his  employment. 

3.  Where  the  injury  is  proximately  caused  by  accident,  and  is  not  so 
caused  by  willful  misconduct. 

And  where  such  conditions  of  compensation  exist  for  any  personal  in- 
jury or  death,  the  right  to  the  recovery  of  such  compensation  pursuant  to 
the  provisions  of  this  act,  and  acts  amendatory  thereof,  shall  be  the  exclu- 
sive remedy  against  the  employer  for  such  injury  or  death;  in  all  other 
cases  the  hability  of  the  employer  shall  be  the  same  as  if  this  and  the 
succeeding  sections  of  this  act  had  not  been  passed,  but  shall  be  subject 
to  the  provisions  of  the  preceding  sections  of  this  act. 

Section  2394 — 5.  The  following  shall  constitute  employers  subject  to 
the  provisions  of  this  act  within  the  meaning  of  the  preceding  section: 

1.  The  state,  and  each  county,  city,  town,  village,  and  school  district 
therein. 

2.  Every  person,  firm,  and  private  corporation  (including  any  pubUc 
service  corporation),  who  has  any  person  in  service  under  any  contract 


304 

of  hire,  express  or  implied,  oral  or  written,  and  who,  at  or  prior  to  the 
time  of  the  accident  to  the  employee  for  which  compensation  under  this 
act  may  be  claimed,  shall,  in  the  manner  provided  in  the  next  section, 
have  elected  to  become  subject  to  the  provisions  of  this  act,  and  who  shall 
not,  prior  to  such  accident,  have  effected  a  withdrawal  of  such  election, 
in  the  manner  provided  in  the  next  section. 

Section  2394 — 6.  Such  election  on  the  part  of  the  employer  shall  be 
made  by  fiUng  with  the  industrial  accident  board,  ^  hereinafter  provided 
for,  a  written  statement  to  the  effect  that  he  accepts  the  provisions  of 
this  act,  the  filing  of  which  statement  shall  operate,  within  the  meaning 
of  section  2394 — 5  of  this  act,  to  subject  such  employer  to  the  provisions 
of  this  act  and  all  acts  amendatory  thereof  for  the  term  of  one  year  from 
the  date  of  the  filing  of  such  statement,  and  thereafter,  without  further 
act  on  his  part,  for  successive  terms  of  one  year  each,  unless  such  employer 
shall,  at  least  sixty  days  prior  to  the  expiration  of  such  first  or  any  suc- 
ceeding year,  file  in  the  office  of  said  board  a  notice  in  writing  to  the  effect 
that  he  desires  to  withdraw  his  election  to  be  subject  to  the  provisions 
of  the  act. 

Section  2394 — 7.  The  term  "employee"  as  used  in  section  2394 — 4 
of  this  act  shall  be  construed  to  mean: 

1.  Every  person  in  the  service  of  the  state,  or  of  any  county,  city,  town, 
village,  or  school  district  therein,  under  any  appointment,  or  contract  of 
hire,  express  or  implied,  oral  or  written,  except  any  official  of  the  state, 
or  of  any  county,  city,  town,  village,  or  school  district  therein,  provided 
that  one,  employed  bj'-  a  contractor,  who  has  contracted  with  a  county, 
city,  town,  village,  school  district,  or  the  state,  through  its  representa- 
tives, shall  not  be  considered  an  employee  of  the  state,  county,  city, 
town,  village,  or  school  district  which  made  the  contract. 

2.  Every  person  in  the  service  of  another  under  any  contract  of  hire, 
express  or  implied,  oral  or  written,  including  aliens,  and  also  including 
minors  who  are  legally  permitted  to  work  under  the  laws  of  the  state 
(who,  for  the  purposes  of  the  next  section  of  this  act,  shall  be  considered 
the  same  and  shall  have  the  same  power  of  contracting  as  adult  employees), 
but  not  including  any  person  whose  employment  is  but  casual  or  is  not 
in  the  usual  course  of  the  trade,  business,  profession,  or  occupation  of  his 
employer. 

Section  2394 — 8.  Any  employee  as  defined  in  subsection  1  of  the  pre- 
ceding section  shall  be  subject  to  the  provisions  of  this  act  and  of  any 
act  amendatory  thereof.  Any  employee  as  defined  in  subsection  2  of 
the  preceding  section  shall  be  deemed  to  have  accepted  and  shall,  within 
the  meaning  of  section  2394 — 4  of  this  act,  be  subject  to  the  provisions 
of  this  act  and  of  any  act  amendatory  thereof,  if,  at  the  time  of  the  accident 
upon  which  liability  is  claimed : 

1.  The  employer  charged  with  such  liability  is  subject  to  the  provisions 
of  this  act,  whether  the  employee  has  actual  notice  thereof  or  not;   and 

>  Superseded  (see  p.  309). 


307 

support,  and  the  accident  proximately  causes  death,  the  death  benefit 
shall  consist  of  the  reasonable  expense  of  his  burial,  not  exceeding 
$100. 

Section  2394 — 10.  1.  The  weekly  earnings  referred  to  in  section 
2394 — 9  shall  be  one  fifty-second  of  the  average  annual  earnings  of  the 
employee ;  average  annual  earnings  shall  not  be  taken  at  less  than  $375,  nor 
more  than  $750,  and  between  said  limits  shall  be  arrived  at  as  follows : 

(a)  If  the  injured  employee  has  worked  in  the  employment  in  which 
he  was  working  at  the  time  of  the  accident,  whether  for  the  same  employer 
or  not,  during  substantially  the  whole  of  the  year  immediately  preceding 
his  injury,  his  average  annual  earnings  shall  consist  of  three  hundred  times 
the  average  daily  wage  or  salary  which  he  has  earned  in  such  employment 
during  the  days  when  so  employed. 

(b)  If  the  injured  employee  has  not  so  worked  in  such  employment 
during  substantially  the  whole  of  such  immediately  preceding  year,  his 
average  annual  earnings  shall  consist  of  three  hundred  times  the  average 
daily  wage  or  salary  which  an  employee  of  the  same  class  working  sub- 
stantially the  whole  of  such  immediately  preceding  year  in  the  same  or 
a  similar  employment  in  the  same  or  a  neighboring  place  shall  have  earned 
in  such  employment  during  the  days  when  so  employed. 

,(c)  In  cases  where  the  foregoing  methods  of  arriving  at  the  average 
annual  earnings  of  the  injured  employee  cannot  reasonably  and  fairly  be 
applied,  such  annual  earnings  shall  be  taken  at  such  sum  as,  having  re- 
gard to  the  previous  earnings  of  the  injured  employee,  and  of  other  em- 
ployees of  the  same  or  most  similar  class,  working  in  the  same  or  most 
similar  employment,  in  the  same  or  neighboring  locality,  shall  reason- 
ably represent  the  annual  earning  capacity  of  the  injured  employee  at 
the  time  of  the  accident  in  the  employment  in  which  he  was  working  at 
such  time. 

(d)  The  fact  that  an  employee  has  suffered  a  previous  disability,  or. 
received  compensation  therefor,  shall  not  preclude  compensation  for  a 
later  injury,  or  for  death,  but  in  determining  compensation  for  the  later 
injury,  or  death,  his  average  annual  earnings  shall  be  such  sum  as  will 
reasonably  represent  his  annual  earning  capacity  at  the  time  of  the  later 
injury,  in  the  employment  in  which  he  was  working  at  such  time,  and  shall 
be  arrived  at  according  to,  and  subject  to  the  limitations  of,  the  previous 
provisions  of  this  section. 

2.  The  weekly  loss  in  wages  referred  to  in  section  2394 — 9  shall  con- 
sist of  such  percentage  of  the  average  weekly  earnings  of  the  injured 
employee,  computed  according  to  the  provisions  of  this  section,  as  shall 
fairly  represent  the  proportionate  extent  of  the  impairment  of  his  earn- 
ing capacity  in  the  employment  in  which  he  was  working  at  the  time  of 
the  accident,  the  same  to  be  fixed  as  of  the  time  of  the  accident,  but  to 
be  determined  in  view  of  the  nature  and  extent  of  the  injury. 

3.  The  following  shall  be  conclusively  presumed  to  be  solely  and  wholly 
dependent  for  support  upon  a  deceased  employee: 


308 

(a)  A  wife  upon  a  husband  with  whom  she  is  living  at  the  time  of  his 
death. 

(b)  A  husband  upon  a  wife  with  whom  he  is  living  at  the  time  of  her 
death. 

(c)  A  child  or  children  under  the  age  of  eighteen  years  (or  over  said 
age,  but  physically  or  mentally  incapacitated  from  earning),  upon  the 
parent  with  whom  he  or  they  are  living  at  the  time  of  the  death  of  such 
parent,  there  being  no  surviving  dependent  parent.  In  case  there  is 
more  than  one  child  thus  dependent,  the  death  benefit  shall  be  divided 
equally  among  them. 

In  all  other  cases  questions  of  entire  or  partial  dependency  shall  be 
determined  in  accordance  with  the  fact,  as  the  fact  may  be  at  the  time 
of  the  death  of  the  employee;  and  in  such  other  cases,  if  there  is  more 
than  one  person  wholly  dependent,  the  death  benefit  shall  be  divided 
equally  among  them,  and  persons  partially  dependent,  if  any,  shall  re- 
ceive no  part  thereof;  and  if  there  is  more  than  one  person  parti^ly 
dependent,  the  death  benefit  shall  be  divided  among  them  according  to 
the  relative  extent  of  their  dependency. 

4.  No  person  shall  be  considered  a  dependent  unless  a  member  of  the 
family  of  the  deceased  employee,  or  bears  to  him  the  relation  of  husband 
or  widow,  or  lineal  descendant,  or  ancestor,  or  brother,  or  sister. 

5.  Questions  as  to  who  constitute  dependents  and  the  extent  of  their 
dependency  shall  be  determined  as  of  the  date  of  the  accident  to  the 
employee,  and  their  right  to  any  death  benefit  shall  become  fixed  as  of 
such  time,  irrespective  of  any  subsequent  change  in  conditions;  and  the 
death  benefit  shall  be  directly  recoverable  by  and  payable  to  the  depend- 
ent or  dependents  entitled  thereto  or  their  legal  guardians  or  trustees; 
provided  that  in  case  of  the  death  of  a  dependent  whose  right  to  a  death 
benefit  has  thus  become  fixed,  so  much  of  the  same  as  is  then  unpaid  shall 
be  recoverable  by  and  payable  to  his  personal  representative  in  gross. 
No  person  shall  be  excluded  as  a  dependent  who  is  a  non-resident  alien. 

6.  No  dependent  of  an  injured  employee  shall  be  deemed,  during  the 
life  of  such  employee,  a  party  in  interest  to  any  proceeding  by  him  for 
the  enforcement  or  collection  of  any  claim  for  compensation,  nor  as 
respects  the  compromise  thereof  by  such  employee. 

Section  2394 — 11.  No  claim  to  recover  compensation  under  this  act 
shall  be  maintained  unless,  within  thirty  days  after  the  occurrence  of 
the  accident  which  is  claimed  to  have  caused  the  injury  or  death,  notice 
in  writing,  stating  the  name  and  address  of  the  person  injured,  the  time 
and  place  where  the  accident  occurred,  and  the  nature  of  the  injury,  and 
signed  by  the  person  injured  or  by  some  one  on  his  behalf,  or  in  case  of 
his  death,  by  a  dependent  or  some  one  on  his  behalf,  shall  be  served  upon 
the  employer,  either  by  delivering  to  and  leaving  with  him  a  copy  of 
such  notice,  or  by  mailing  to  him  by  registered  mail  a  copy  thereof  in  a 
sealed  and  postpaid  envelope  addressed  to  him  at  his  last  known  place  of 
business  or  residence.    Such  mailing  shall  constitute  completed  service. 


309 

Provided,  however,  that  any  payment  of  compensation  under  this  act, 
in  whole  or  in  part,  made  by  the  employer  before  the  expiration  of  said 
thirty  days,  shall  be  equivalent  to  the  notice  herein  required;  and  pro- 
vided further,  that  the  failure  to  give  any  such  notice,  or  any  defect  or 
inaccuracy  therein,  shall  not  be  a  bar  to  recovery  under  this  act  if  it  is 
foimd  as  a  fact  in  the  proceedings  for  collection  of  the  claim  that  there 
was  no  intention  to  mislead  the  employer,  and  that  he  was  not  in  fact 
misled  thereby;  and  provided  further,  that  if  no  such  notice  is  given 
and  no  payment  of  compensation  made,  within  two  years  from  the  date 
of  the  accident,  the  right  to  compensation  therefor  shall  be  wholly  barred. 

Section  2394 — 12.  Wherever  in  case  of  injury  the  right  to  compensa- 
tion under  this  act  would  exist  in  favor  of  any  employee,  he  shall,  upon 
the  written  request  of  his  employer,  submit  from  time  to  time  to  exam- 
ination by  a  regular  practicing  physician,  who  shall  be  provided  and  paid 
for  by  the  employer,  and  shall  likewise  submit  to  examination  from  time 
to  time  by  any  regular  physician  selected  by  said  industrial  accident  board, 
or  a  member  or  examiner  thereof.  The  employee  shall  be  entitled  to  have 
a  physician,  provided  and  paid  for  by  himself,  present  at  any  such  ex- 
amination. So  long  as  the  employee,  after  such  written  request  of  the 
employer,  shall  refuse  to  submit  to  such  examination,  or  shall  in  any  way 
obstruct  the  same,  his  right  to  begin  or  maintain  any  proceeding  for  the 
collection  of  compensation  shall  be  suspended;  and  if  he  shall  refuse  to 
submit  to  such  examination  after  direction  by  the  board,  or  any  member 
or  examiner  thereof,  or  shall  in  any  way  obstruct  the  same,  his  right  to 
the  weekly  indemnity  which  shall  accrue  and  become  payable  during  the 
period  of  such  refusal  or  obstruction,  shall  be  barred.  Any  physician 
who  shall  make  or  be  present  at  any  such  examination  may  be  required 
to  testify  as  to  the  results  thereof. 

Section  2394 — 13.  There  is  hereby  created  a  board  which  shall  be 
known  as  the  industrial  accident  board. ^  The  commissioner  of  labor  and 
industrial  statistics  shall  be  ex-officio  a  member  of  such  board.  He  may, 
however,  authorize  the  deputy  commissioner  to  act  in  his  place.  Within 
thirty  days  after  the  passage  of  this  act,  the  governor,  by  and  with  the 
advice  and  consent  of  the  senate,  shall  appoint  a  member  who  shall 
serve  two  years,  and  another  who  shall  serve  four  years.  Thereafter  such 
two  members  shall  be  appointed  and  confirmed  for  terms  of  four  years 
each.  Vacancies  shall  be  filled  in  the  same  manner  for  the  unexpired 
term.  Each  member  of  the  board,  before  entering  upon  the  duties  of 
his  office,  shall  take  the  oath  prescribed  by  the  constitution.  A  majority 
of  the  board  shall  constitute  a  quorum  for  the  exercise  of  any  of  the 
powers  or  authority  conferred  by  this  act,  and  an  award  by  a  majority 
shall  be  valid.  In  case  of  a  vacancy,  the  remaining  two  members  of 
the  board  shall  exercise  all  the  powers  and  authority  of  the  board  until 
such  vacancy  is  filled.    Each  member  of  the  board,  including  the  said 

>  The  Industrial  Accident  Board  has  been  superseded  by  the  Industrial  Commission  of  Wis- 
cousin  (see  Sec.  1021  b-2,  Chapter  485,  Laws  of  Wisconsin  for  1911). 


310 

commissioner,  shall  receive  an  annual  salary  of  $5,000.  This  salary  shall, 
as  to  the  commissioner  of  labor  and  industrial  statistics,  be  in  full  for 
his  services  as  such  commissioner  of  labor  and  industrial  statistics. 

Section  2394 — 14.  The  board  ^  shall  organize  by  choosing  one  of  its 
members  as  chairman.  Subject  to  the  provisions  of  this  act,  it  may 
adopt  its  own  rules  of  procedure  and  may  change  the  same  from  time  to 
time  in  its  discretion.  The  board,  when  it  shall  deem  it  necessary  to 
expedite  its  business,  may  from  time  to  time  employ  one  or  more  expert 
examiners  for  such  length  of  time  as  may  be  required,  such  examiners  to 
be  exempt  from  the  operation  of  chapter  363  of  the  laws  of  1905,  and 
amendatory  acts.  It  may  also  appoint  a  secretary,  who  shall  be  similarly 
exempt,  and  such  clerical  help  as  it  may  deem  necessary.  It  shall  fix  the 
compensation  of  all  assistants  so  appointed.  It  shall  provide  itself  with 
a  seal  for  the  authentication  of  its  orders,  awards,  and  proceedings,  upon 
which  shall  be  inscribed  the  words  "Industrial  Accident  Board  —  Wis- 
consin —  Seal."  It  shall  keep  its  office  at  the  capitol,  and  shall  be  pro- 
vided by  the  superintendent  of  pubUc  property  with  a  suitable  room  or 
rooms,  necessary  office  furniture,  stationery,  and  other  supplies.  The 
members  of  the  board  and  its  assistants  shall  be  entitled  to  receive  from 
the  state  their  actual  and  necessary  expenses  while  traveling  on  the  busi- 
ness of  the  board;  but  such  expenses  shall  be  sworn  to  by  the  person  who 
incurred  the  same,  and  be  approved  by  the  chairman  of  the  board,  before 
payment  is  made.  All  salaries  and  expenses  authorized  by  this  act  shall 
be  audited  and  paid  out  of  the  general  funds  of  the  state,  the  same  as 
other  general  state  expenses  are  audited  and  paid. 

Section  2394 — 15.  Any  dispute  or  controversy  concerning  compensa- 
tion under  this  act,  including  any  in  which  the  state  may  be  a  party,  shall 
be  submitted  to  said  industrial  accident  board  in  the  manner  and  with 
the  effect  provided  in  this  act.  Every  compromise  of  any  claim  for  com- 
pensation under  this  act  shall  be  subject  to  be  reviewed  by,  and  set  aside, 
modified,  or  confirmed  by  the  board  upon  application  made  within  one 
year  from  the  time  of  such  compromise. 

Section  2394 — 16.  Upon  the  filing  with  the  board  by  any  party  in 
interest  of  an  application  in  writing  stating  the  general  nature  of  any  claim 
as  to  which  any  dispute  or  controversy  may  have  arisen,  it  shall  fix  a 
time  for  the  hearing  thereof,  which  shall  not  be  more  than  forty  days 
after  the  filing  of  such  application.  The  board  shall  cause  notice  of  such 
hearing,  embracing  a  general  statement  of  such  claim,  to  be  given  to 
each  party  interested,  by  service  of  such  notice  on  him  personally  or  by 
mailing  a  copy  thereof  to  him  at  his  last  known  postoffice  address  at  least 
ten  days  before  such  hearing.  Such  hearing  may  be  adjourned  from 
time  to  time  in  the  discretion  of  the  board,  and  hearings  may  be  held  at 
such  places  as  the  board  shall  designate.  Either  party  shall  have  the 
right  to  be  present  at  any  hearing,  in  person  or  by  attorney,  or  any  other 
agent,  and  to  present  such  testimony  as  may  be  pertinent  to  the  contro- 

'  Superseded  (see  p.  309). 


311 

versy  before  the  board;  but  the  board  may,  with  or  without  notice  to 
either  party,  cause  testimony  to  be  taken,  or  an  inspection  of  the  premises 
where  the  injury  occurred  to  be  had,  or  the  time  books  and  pay-roll  of 
the  employer  to  be  examined  by  any  member  of  the  board  or  any  examiner 
appointed  by  -it,  and  may  from  time  to  time  direct  any  employee  claiming 
compensation  to  be  examined  by  a  regular  physician;  the  testimony  so 
taken,  and  the  results  of  any  such  inspection  or  examination,  to  be  re- 
ported to  the  board  for  its  consideration  upon  final  hearing.  The  board, 
or  any  member  thereof,  or  any  examiner  appointed  thereby,  shall  have 
power  and  authority  to  issue  subpoenas,  to  compel  the  attendance  of  wit- 
nesses or  parties,  and  the  production  of  books,  papers,  or  records,  and  to 
administer  oaths.  Obedience  to  such  subpoenas  shall  be  enforced  by  the 
circuit  court  of  any  county. 

Section  2394 — 17.  After  final  hearing  by  said  board,  it  shall  make 
and  file  (1)  its  findings  upon  all  the  facts  involved  in  the  controversy,  and 
(2)  its  award,  which  shall  state  its  determination  as  to  the  rights  of  the 
parties.  Pending  the  hearing  and  determination  of  any  controversy 
before  it,  the  board  shall  have  power  to  order  the  payment  of  such,  or 
any  part,  of  the  compensation,  which  is  or  may  fall  due,  as  to  which  the 
party  from  whom  the  same  is  claimed  does  not  deny  liability  in  good 
faith  within  ten  days  after  the  giving  of  notice  of  hearing  provided  for 
in  the  preceding  section;  and  if  the  same  shall  not  be  paid  as  required 
by  such  order,  the  facts  with  respect  to  the  liability  therefor,  and  the  deter- 
mination of  the  board  as  to  the  rights  of  the  parties,  shall  be  embraced 
in,  and  constitute  a  part  of,  its  finding  and  award;  and  the  board  shall 
have  the  power  to  include  in  its  award,  as  a  penalty  for  non-compliance 
with  any  such  order,  not  exceeding  twenty-five  per  cent,  of  each  amount 
which  shall  not  have  been  paid  as  directed  thereby. 

Section  2394 — 18.  Either  party  may  present  a  certified  copy  of  the 
award  to  the  circuit  court  for  any  county,  whereupon  said  court  shall, 
without  notice,  render  a  judgment  in  accordance  therewith;  which  judg- 
ment, until  and  unless  set  aside  as  hereinafter  provided,  shall  have  the 
same  effect  as  though  duly  rendered  in  an  action  duly  tried  and  deter- 
mined by  said  court,  and  shall,  with  like  effect,  be  entered  and  docketed. 

Section  2394 — 19.  The  findings  of  fact  made  by  the  board  acting 
within  its  powers  shall,  in  the  absence  of  fraud,  be  conclusive;  and  the 
award,  whether  judgment  has  been  rendered  thereon  or  not,  shall  be 
subject  to  review  only  in  the  manner  and  upon  the  grounds  following: 
Within  twenty  days  from  the  date  of  the  award,  any  party  aggrieved 
thereby  may  commence,  in  the  circuit  court  for  Dane  county,  an  action 
against  the  board  for  the  review  of  such  award,  in  which  action  the  ad- 
verse party  shall  also  be  made  defendant.  In  such  action  a  complaint, 
which  shall  state  the  grounds  upon  which  a  review  is  sought,  shall  be 
served  with  the  summons.  Service  upon  the  secretary  of  the  board,  or 
any  member  of  the  board,  shall  be  deemed  completed  service.  The  board 
shall  serve  its  answer  within  twenty  days  after  the  service  of  the  com- 


312 

plaint,  and,  within  the  like  time,  such  adverse  party  shall,  if  he  so  desires, 
serve  his  answer  to  said  complaint.  With  its  answer,  the  board  shall 
make  return  to  said  court  of  all  docimients  and  papers  on  file  in  the  mat- 
ter, and  of  all  testimony  which  may  have  been  taken  therein,  and  of  its 
findings  and  award.  Said  action  may  thereupon  be  brought  on  for  hear- 
ing before  said  court  upon  such  record  by  either  party  on  ten  days'  notice 
to  the  other;  subject,  however,  to  the  provisions  of  law  for  a  change  of 
the  place  of  trial  or  the  calling  in  of  another  judge.  Upon  such  hearing, 
the  court  may  confirm  or  set  aside  such  award;  and  any  judgment  which 
may  theretofore  have  been  rendered  thereon;  but  the  same  shall  be  set 
aside  only  upon  the  following  grounds: 

1.  That  the  board  acted  without  or  in  excess  of  its  powers. 

2.  That  the  award  was  procured  by  fraud. 

3.  That  the  findings  of  fact  by  the  board  do  not  support  the  award. 
Section  2394 — 20.    Upon  the  setting  aside  of  any  award  the  court  may 

recommit  the  controversy  and  remand  the  record  in  the  case  to  the  board, 
for  further  hearing  or  proceedings;  or  it  may  enter  the  proper  judgment 
upon  the  findings,  as  the  nature  of  the  case  shall  demand.  An  abstract 
of  the  judgment  entered  by  the  trial  court  upon  the  review  of  any  award 
shall  be  made  by  the  clerk  thereof  upon  the  docket  entry  of  any  judg- 
ment which  may  theretofore  have  been  rendered  upon  such  award,  and 
transcript  of  such  abstract  may  thereupon  be  obtained  for  like  entry 
upon  the  dockets  of  the  courts  of  other  counties. 

Section  2394 — 21.  Said  board,  or  any  party  aggrieved  by  a  judgment 
entered  upon  the  review  of  any  award,  may  appeal  therefrom  within  the 
time  ^nd  in  the  manner  provided  for  an  appeal  from  the  orders  of  the 
circuit  court;  but  all  such  appeals  shall  be  placed  on  the  calendar  of  the 
supreme  court  and  brought  to  a  hearing  in  the  same  manner  as  state 
causes  on  such  calendar. 

Section  2394 — 22.  No  fees  shall  be  charged  by  the  clerk  of  any  court 
for  the  performance  of  any  official  service  required  by  this  act,  except  for 
the  docketing  of  judgments  and  for  certified  copies  of  transcripts  thereof. 
In  proceedings  to  review  an  award,  costs  as  between  the  parties  shall  be 
allowed  or  not  in  the  discretion  of  the  court,  but  no  costs  shall  be  taxed 
against  said  board.  In  any  action  for  the  review  of  an  award,  and  upon 
any  appeal  therein  to  the  supreme  court,  it  shall  be  the  duty  of  the  attor- 
ney general,  personally,  or  by  an  assistant,  to  appear  on  behalf  of  the 
board,  whether  any  other  party  defendant  shall  have  appeared  or  be 
represented  in  the  action  or  not.  Unless  previously  authorized  by  the 
board,  no  lien  shall  be  allowed,  nor  any  contract  be  enforceable,  for  any 
contingent  attorneys'  fee  for  the  enforcement  or  collection  of  any  claim 
for  compensation  where  such  contingent  fee,  inclusive  of  all  taxable 
attorneys'  fees  paid  or  agreed  to  be  paid  for  the  enforcement  or  collec- 
tion of  such  claim,  exceeds  ten  per  cent,  of  the  amount  at  which  such 
claim  shall  be  compromised,  or  of  the  amount  awarded,  adjudged,  or 
collected. 


313 

Section  2394 — 23.  No  claim  for  compensation  under  this  act  shall  be 
assignable  before  payment,  but  this  provision  shall  not  affect  the  survival 
thereof;  nor  shall  any  claim  for  compensation,  or  compensation  awarded, 
adjudged,  or  paid,  be  subject  to  be  tal^en  for  the  debts  of  the  party  entitled 
thereto. 

Section  2394 — 24.  The  whole  claim  for  compensation  for  the  injury 
or  death  of  any  employee  or  any  award  or  judgment  thereon,  shall  be 
entitled  to  a  preference  over  the  unsecured  debts  of  the  employer  here- 
after contracted,  but  this  section  shall  not  impair  the  lien  of  any  judg- 
ment entered  upon  any  award. 

Section  2394 — 25.  The  making  of  a  lawful  claim  against  an  employer 
for  compensation  under  this  act  for  the  injury  or  death  of  his  employee 
shall  operate  as  an  assignment  of  any  cause  of  action  in  tort  which  the 
employee  or  his  personal  representative  may  have  against  any  other 
party  for  such  injury  or  death;  and  such  employer  may  enforce  in  his 
own  name  the  liability  of  such  other  party.  ' 

Section  2394 — 26.  Nothing  in  this  act  shall  affect  the  organization 
of  any  mutual  or  other  insurance  company,  or  any  existing  contract  for 
insurance  of  employers'  liabiUty,  nor  the  right  of  the  employer  to  insure 
in  mutual  or  other  companies,  in  whole  or  in  part,  against  such  liability, 
or  against  the  liability  for  the  compensation  provided  for  by  this  act,  or 
to  provide  by  mutual  or  other  insurance,  or  by  arrangement  with  his 
employees,  or  otherwise,  for  the  payment  to  such  employees,  their  fami- 
lies, dependents,  or  representatives,  of  sick,  accident,  or  death  benefits  in 
addition  to  the  compensation  provided  for  by  this  act.  But  liability  for 
compensation  under  this  act  shall  not  be  reduced  or  affected  by  any  in- 
surance, contribution,  or  other  benefit  whatsoever,  due  to  or  received  by 
the  person  entitled  to  such  compensation,  and  the  person  so  entitled 
shall,  irrespective  of  any  insurance  or  other  contract,  have  the  right  to 
recover  the  same  directly  from  the  employer;  and  in  addition  thereto, 
the  right  to  enforce  in  his  own  name,  in  the  manner  provided  in  this  act, 
the  liabihty  of  any  insurance  company  which  may,  in  whole  or  in  part, 
have  insured  the  liabiUty  for  such  compensation;  provided,  however,  that 
payment  in  whole  or  in  part  of  such  compensation  by  either  the  em- 
ployer or  the  insurance  company,  shall,  to  the  extent  thereof,  be  a  bar  to 
recovery  against  the  other  of  the  amount  so  paid,  and  provided  further, 
that  as  between  the  employer-  and  the  insurance  company,  payment  by 
either  directly  to  the  employee,  or  to  the  person  entitled  to  compensa- 
tion, shall  be  subject  to  the  conditions  of  the  insurance  contract  between 
them. 

Section  2394 — 27.  Every  contract  for  the  insurance  of  the  compensa- 
tion herein  provided  for,  or  against  liability  therefor,  shall  be  deemed  to 
be  made  subject  to  the  provisions  of  this  act,  and  provisions  thereof 
inconsistent  with  this  act  shall  be  void.  No  company  shall  enter  into 
any  such  contract  of  insurance  unless  such  company  shall  have  been 
approved  by  the  commissioner  of  insurance,  as  provided  by  law.    For  the 


314 

purposes  of  this  act,  each  employee  shall  constitute  a  separate  risk  within 
the  meaning  of  section  1898d  of  the  statutes. 

Section  2394 — 28.  Any  employer  against  whom  liability  may  exist 
for  compensation  under  this  act  may,  with  the  approval  of  the  industrial 
accident  board,  be  relieved  therefrom  by: 

1.  Depositing  the  present  value  of  the  total  unpaid  compensation  for 
which  such  liability  exists,  assuming  interest  at  three  per  centum  per 
annum,  with  such  trust  company  of  this  state  as  shall  be  designated  by 
the  employee  (or  by  his  dependents,  in  case  of  his  death,  and  such  liabil- 
ity exists  in  their  favor),  or  in  default  of  such  designation  by  him  (or 
them)  after  ten  days'  notice  in  writing  from  the  employer,  with  such 
trust  company  of  this  state  as  shall  be  designated  by  the  board;  or 

2.  By  the  purchase  of  an  annuity,  within  the  limitations  provided  by 
law,  in  any  insurance  company  granting  annuities  and  licensed  in  this 
state,  which  may  be  designated  by  the  employee,  or  his  dependents,  or 
the  board,  as  provided  in  subsection  1  of  this  section. 

Section  2394 — 29.  The  board  shall  cause  to  be  printed  and  furnished 
free  of  charge  to  any  employer  or  employee  such  blank  forms  as  it  shall 
deem  requisite  to  facilitate  or  promote  the  efficient  administration  of  this 
act;  it  shall  provide  a  proper  record  book  in  which  shall  be  entered  and 
indexed  the  name  of  every  employer  who  shall  file  a  statement  of  election 
under  this  act,  and  the  date  of  the  filing  thereof,  and  a  separate  book  in 
which  shall  be  entered  and  indexed  the  name  of  every  employer  who  shall 
file  his  notice  of  withdrawal  of  such  election,  and  the  date  of  the  filing 
thereof;  and  books  in  which  shall  be  recorded  all  orders  and  awards  made 
by  the  board;  and  such  other  books  or  records  as  it  shall  deem  required 
by  the  proper  and  efficient  administration  of  this  act:  all  such  records  to 
be  kept  in  the  office  of  the  board.  Upon  the  filing  of  a  statement  of  elec- 
tion by  an  employer  to  become  subject  to  the  provis'ons  of  this  act,  the 
board  shall  forthwith  cause  notice  of  the  fact  to  be  given  to  his  employees, 
by  posting  such  notice  thereof  in  several  conspicuous  places  in  the  office, 
shop,  or  place  of  business  of  the  employer,  or  by  publishing,  or  in  such 
other  manner  as  the  board  shall  deem  most  effective;  and  the  board  shall 
likewise  cause  notice  to  be  given  of  the  filing  of  any  withdrawal  of  such 
election;  but  notwithstanding  the  failure  to  give,  or  the  insufficiency  of, 
any  such  notice,  knowledge  of  all  filed  statements  of  election  and  notices 
of  withdrawal  of  election,  and  of  the  time  of  the  filing  of  the  same,  shall 
conclusively  be  imputed  to  all  employees. 

Section  2394 — 30.  A  sum  sufficient  to  carry  out  the  provisions  of  this 
act  is  hereby  appropriated  out  of  any  money  in  the  treasury  not  other- 
wise appropriated. 

Section  2394 — 31.  All  acts  or  parts  of  acts  inconsistent  with  this  act 
are  to  be  deemed  replaced  by  this  act,  and  to  that  end  are  hereby  repealed. 

Section  2394 — 32.  The  legislature  intends  the  contingency  in  sub- 
division 2  of  section  2394 — 1  of  this  act  to  be  a  separable  part  thereof, 
and  the  subdivision  likewise  separable  from  the  rest  of  the  act,  and  that 


315 

part  of  said  section  2394 — 1  that  follows  subdivision  2,  likewise  separable 
from  the  rest  of  the  act;  so  that  any  part  of  said  subdivision,  or  the 
whole,  or  that  part  which  follows  said  subdivision  2,  may  fail  without 
affecting  any  other  part  of  the  act. 

Section  2.  Section  2394—3  to  2394—32,  inclusive,  shall  take  effect 
and  be  in  force  from  and  after  the  passage  and  publication  of  this  act, 
and  the  entire  act  shall  be  in  force  from  and  after  September  1st,  1911. 

Approved  May  3,  1911. 


UNITED   STATES  LAWS. 
Act  of  Congress  of  May  30,  1908,  Chapter  236. 

An  Act  geanting  to  Certain  Employees  op  the  United  States  the 
Right  to  receive  from  it  Compensation  for  Injuries  sustained 
in  the  Course  of  their  Employment. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  That  when,  on  or  after  August  first, 
nineteen  hundred  and  eight,  any  person  employed  by  the  United  States  as 
an  artisan  or  laborer  in  any  of  its  manufacturing  establishments,  arsenals, 
or  navy-yards,  or  in  the  construction  of  river  and  harbor  or  fortification 
work  or  in  hazardous  employment  on  construction  work  in  the  reclama- 
tion of  arid  lands  or  the  management  and  control  of  the  same,  or  in 
hazardous  employment  under  the  Isthmian  Canal  Commission,  is  injured 
in  the  course  of  such  employment,  such  employee  shall  be  entitled  to 
receive  for  one  year  thereafter,  unless  such  employee,  in  the  opinion  of 
the  Secretary  of  Commerce  and  Labor,  be  sooner  able  to  resume  work, 
the  same  pay  as  if  he  continued  to  be  employed,  such  payment  to  be 
made  under  such  regulations  as  the  Secretary  of  Commerce  and  Labor 
may  prescribe:  Provided,  That  no  compensation  shall  be  paid  under 
this  Act  where  the  injury  is  due  to  the  negligence  or  misconduct  of  the 
employee  injured,  nor  unless  said  injury  shall  continue  for  more  than 
fifteen  days.  All  questions  of  negligence  or  misconduct  shall  be  deter- 
mined by  the  Secretary  of  Commerce  and  Labor. 

Sec.  2.  That  if  any  artisan  or  laborer  so  employed  shall  die  during 
the  said  year  by  reason  of  such  injury  received  in  the  course  of  such  em- 
ployment, leaving  a  widow,  or  a  child  or  children  under  sixteen  years  of 
age,  or  a  dependent  parent,  such  widow  and  child  or  children  and  depend- 
ent parent  shall  be  entitled  to  receive,  in  such  portions  and  under  such 
regulations  as  the  Secretary  of  Commerce  and  Labor  may  prescribe,  the 
same  amount,  for  the  remainder  of  the  said  year,  that  said  artisan  or 
laborer  would  be  entitled  to  receive  as  pay  if  such  employee  were  alive 
and  continued  to  be  employed:  Provided,  That  if  the  widow  shall  die  at 
any  time  during  the  said  year  her  portion  of  said  amount  shall  be  added 
to  the  amount  to  be  paid  to  the  remaining  beneficiaries  under  the  provi- 
sions of  this  section,  if  there  be  any. 


316 

Sec.  3.  That  whenever  an  accident  occurs  to  any  employee  embraced 
within  the  terms  of  the  first  section  of  this  Act,  and  which  results  in  death 
or  a  probable  incapacity  for  work,  it  shall  be  the  duty  of  the  official  su- 
perior of  such  employee  to  at  once  report  such  accident  and  the  injury 
resulting  therefrom  to  the  head  of  his  Bureau  or  independent  office,  and 
his  report  shall  be  immediately  communicated  through  regular  official 
channels  to  the  Secretary  of  Commerce  and  Labor.  Such  report  shall 
state,  first,  the  time,  cause,  and  nature  of  the  accident  and  injury  and  the 
probable  duration  of  the  injury  resulting  therefrom;  second,  whether  the 
accident  arose  out  of  or  in  the  course  of  the  injured  person's  employment; 
third,  whether  the  accident  was  due  to  negligence  or  misconduct  on  the 
part  of  the  employee  injured;  fourth,  any  other  matters  required  by 
such  rules  and  regulations  as  the  Secretary  of  Commerce  and  Labor  may 
prescribe.  The  head  of  each  Department  or  independent  office  shall 
have  power,  however,  to  charge  a  special  official  with  the  duty  of  making 
such  reports. 

Sec.  4.  That  in  the  case  of  any  accident  which  shall  result  in  death, 
the  persons  entitled  to  compensation  under  this  Act  or  their  legal  repre- 
sentatives shall,  within  ninety  days  after  such  death,  file  with  the  Secre- 
tary of  Commerce  and  Labor  an  affidavit  setting  forth  their  relationship 
to  the  deceased  and  the  ground  of  their  claim  for  compensation  under 
the  provisions  of  this  Act.  This  shall  be  accompanied  by  the  certificate 
of  the  attending  physician  setting  forth  the  fact  and  cause  of  death,  or 
the  nonproduction  of  the  certificate  shall  be  satisfactorily  accounted  for. 
In  the  case  of  incapacity  for  work  lasting  more  than  fifteen  days,  the 
injured  party  desiring  to  take  the  benefit  of  this  Act  shall,  within  a  rea- 
sonable period  after  the  expiration  of  such  time,  file  with  his  official  su- 
perior, to  be  forwarded  through  regular  official  channels  to  the  Secretary 
of  Commerce  and  Labor,  an  affidavit  setting  forth  the  grounds  of  his 
claim  for  compensation,  to  be  accompanied  by  a  certificate  of  the  attend- 
ing physician  as  to  the  cause  and  nature  of  the  injury  and  probable  dura- 
tion of  the  incapacity,  or  the  nonproduction  of  the  certificate  shall  be 
satisfactorily  accounted  for.  If  the  Secretary  of  Commerce  and  Labor 
shall  find  from  the  report  and  affidavit  or  other  evidence  produced  by 
the  claimant  or  his  or  her  legal  representatives,  or  from  such  additional 
investigation  as  the  Secretary  of  Commerce  and  Labor  may  direct,  that 
a  claim  for  compensation  is  estabhshed  under  this  Act,  the  compensation 
to  be  paid  shall  be  determined  as  provided  under  this  Act  and  approved 
for  payment  by  the  Secretary  of  Commerce  and  Labor. 

Sec.  5.  That  the  employee  shall,  whenever  and  as  often  as  required 
by  the  Secretary  of  Commerce  and  Labor,  at  least  once  in  six  months, 
submit  to  medical  examination,  to  be  provided  and  paid  for  under  the 
direction  of  the  Secretary,  and  if  such  employee  refuses  to  submit  to  or 
obstructs  such  examination  his  or  her  right  to  compensation  shall  be  lost 
for  the  period  covered  by  the  continuance  of  such  refusal  or  obstruction. 

Sec.  6.    That  payments  under  this  Act  are  only  to  be  made  to  the 


317 

beneficiaries  or  their  legal  representatives  other  than  assignees,  and  shall 
not  be  subject  to  the  claims  of  creditors. 

Sec.  7.  That  the  United  States  shall  not  exempt  itself  from  liability 
under  this  Act  by  any  contract,  agreement,  rule,  or  regulation,  and  any 
such  contract,  agreement,  rule,  or  regulation  shall  be  pro  tanto  void. 

Sec.  8.  That  all  Acts  or  parts  of  Acts  in  conflict  herewith  or  provid- 
ing a  different  scale  of  compensation  or  otherwise  regulating  its  payment 
are  hereby  repealed.     (35  Stat.  556.) 

Act  of  Congress  of  March  4,  1911,  Chapter  285. 

An  Act  making  Appbopriations  for  Sundry  Civil  Expenses  op  the 
Government  for  the  Fiscal  Year  ending  June  Thirtieth,  Nine- 
teen Hundred  and  Twelve,  and  for  Other  Purposes. 
Sec.  5.  That  hereafter  the  Act  granting  to  certain  employees  of  the 
United  States  the  right  to  receive  from  it  compensation  for  injuries  sus- 
tained in  the  course  of  their  employment  shall  apply  to  all  employees 
under  the  Isthmian  Canal  Commission,  when  injured  in  the  course  of 
their  employment;  and  claims  for  compensation  on  account  of  injury 
or  death  resulting  from  an  accident  occurring  hereafter  shall  be  settled 
by  the  chairman  of  the  Isthmian  Canal  Commission,  who  shall,  as  to 
such  claims  and  under  such  regulations  as  he  may  prescribe,  petform  all 
the  duties  now  devolving  upon  the  Secretary  of  Commerce  and  Labor: 
Provided,  That  when  an  injury  results  in  death,  claim  for  compensation 
on  account  thereof  shall  be  filed  within  one  year  after  such  death.  (36 
Stat.  1452.) 

Act  of  Congress  of  March  11,  1912. 

An  Act  to  amend  An  Act  entitled  "An  Act  granting  to  Certain 
Employees  op  the  United  States  the  Right  to  receive  from  it 
Compensation  for  Injuries  sustained  in  the  Course  of  their 
Employment,"  approved  May  Thirtieth,  Nineteen  Hundred  and 
Eight. 

Be  it  enacted  by  the  Senate  and  Hoicse  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  provisions  of  the  Act 
approved  May  thirtieth,  nineteen  hundred  and  eight,  entitled  "An  Act 
granting  to  certain  employees  of  the  United  States  the  right  to  receive 
from  it  compensation  for  injuries  sustained  in  the  course  of  their  em- 
ployment," shall,  in  addition  to  the  classes  of  persons  therein  designated, 
be  held  to  apply  to  any  artisan,  laborer,  or  other  employee  engaged  in 
any  hazardous  work  under  the  Bureau  of  Mines  or  the  Forestry  Service 
of  the  United  States:  Provided,  That  this  Act  shall  not  be  held  to  em- 
brace any  case  arising  prior  to  its  passage. 


318 


APPENDIX  E. 


REPORT  BLANKS  AND  INSTRUCTIONS. 

MASSACHUSETTS    COMMISSION    ON    COMPENSATION    FOR    INDUS- 
TRIAL ACCIDENTS. 

Room  227,  State  House. 
Report  of  Accident.! 

Name  and  Location  of  Employer 

Number  of  Employees Nature  of  Business 

Injured  Employee:  — 

Name Sex Age 

Home  Address 

Average  Wage  per  Week 

Single,  Married,  Widowed  or  Divorced.  Number  of  Children. under  16  Years 

<Cros8  out  three  words.) 

of  Age 

Occupation  when  Injured 

How  Long  Employed  in  Such  Occupation 

How  Long  Employed  by  Present  Employer 

Name  of  Machine  or  Tool  by  which  Injured 

Injury: — 

Date  and  Hour  of  Accident 

Nature  of  Injury 

Did  Injury  Prevent  Continuance  at  Work? Probable  Period  of  Disabil- 
ity   

Description  of  Accident 


Report  Made  Out  by . 
Date Whose  Position  is ...  . 


Supplementary  Report  of  Accident. 

;(S"(To  be  detached  and  forwarded  when  injured  person  returns  to  work.) 

Name  of  Injured  Employee 

Has  Injured  Returned  to  Work? When? 

If  Injured  has  not  Returned  to  Work  on  or  before  July  1,  1911,  State  Why. 


Date Report  Made  Out  By 

[Printed  in  copying  ink.) 

'  This  form  was  used  for  both  fatal  and  non-fatal  accidents  during  the  greater  part  of  the 
period  covered  by  the  investigation.    It  Vas  finally  replaced  by  the  two  forms  which  follow. 


319 


Instructions  for  Filling  Out  Accident  Report  Blanks. 

(1)  Answer  every  question.  Be  careful  not  to  omit  address  as  well 
as  name  of  employer  and  to  give  the  number  of  employees. 

The  information  as  to  conjugal  condition  and  number  of  children  is 
needed,  and  employers  are  asked  to  make  inquiries  for  these  items  if 
they  do  not  have  them  on  record. 

(2)  The  main  report  is  to  be  sent  within  forty-eight  hours,  not  count- 
ing Sundays  and  legal  holidays,  after  occurrence  of  an  accident. 

(3)  If  the  injured  has  not  returned  to  work  at  the  time  of  making  the 
main  report,  the  supplementary  report  is  to  be  detached,  retained  until 
the  employee  returns  to  work,  or  until  the  end  of  sixty  days  if  he  has 
not  returned  by  that  time,  then  filled  out  and  sent  in.  (To  avoid  error, 
fill  in  the  name  of  the  injured  before  detaching  the  supplement  from  the 
main  report.) 

(4)  In  all  correspondence  be  sure  to  mention  the  number  of  the  report 
in  question.^     (See  upper  left-hand  corner.) 

(5)  The  question  "Did  injury  prevent  continuance  at  work?"  means 
to  ask  whether  the  employee  was  disabled  either  permanently  or  tem- 
porarily, totally  or  partially. 

(6)  Accidents  which  do  not  either  cause  absence  from  work  or  require 
treatment  by  a  physician  need  not  be  reported.  If  a  trivial  injury  re- 
sults later  in  blood  poisoning,  or  other  compHcations  which  require  a 
doctor's  care  or  loss  of  time,  this  is  to  be  reported  when  such  develop- 
ments occur,  giving  date  of  original  accident  and  of  beginning  of  disabil- 
ity. 

(7)  If  there  is  no  disability,  do  not  detach  the  supplementary  report, 
but  mark  it  across  with  an  oblique  line  as  not  applicable. 

(8)  Note  with  special  care  any  loss  of  limb  or  eye.  In  case  of  loss 
of  part  of  a  finger  or  toe,  state  definitely  whether  amputation  was  above 
first  or  second  joint. 

(9)  In  many  cases  no  prediction  of  the  probable  length  of  disability 
is  made.  Employers  are  requested  to  give  estimates  of  this  wherever 
they  can  possibly  be  obtained. 


Supplementary  Instructions. 

The  sending  of  reports  to  this  commission  does  not  relieve  employers 
from  the  usual  reporting  to  the  State  District  Pohce. 

Since  a  chief  object  of  the  present  reporting  is  to  determine  the  amount 
of  disability  caused  by  accidents,  and  hence  the  cost  <5f  any  scheme  of 
compensation,  employers  are  urged  to  make  special  efforts  to  give  com- 
plete information  on  this  point.    Where  employees  leave  their  service, 

'  The  first  accident  report  blanks  were  numbered. 


320 

they  are  asked  to  gain  the  information  through  whatever  sources  are 
available  —  fellow-workmen,  later  employers,  insurance  companies,  etc. 

Wages  are  to  be  given  by  the  week.  Where  employees  are  paid  other- 
wise than  by  the  week,  as  by  the  hour,  give  average  earnings  per  week. 

Partial  disability  means  that  the  injured  workman  is  able  to  do  some 
work,  but  is  not  worth  his  full  wages.  In  such  cases,  please  state  as 
accurately  as  possible  the  extent  of  reduction  of  earning  capacity. 

Please  state  whether  partial  incapacity  is  temporary  or  permanent; 
if  temporary,  please  report  date  when  the  injured  workman  is  able  to 
earn  his  full  wages  at  his  old  or  some  other  occupation. 

In  all  cases  where  accidents  resulting  in  slight  injuries  are  reported, 
please  specify  whether  treatment  by  a  physician  was  necessary. 

In  case  of  crushing  of  fingers,  toes,  or  limbs,  please  note  specifically 
what  amputation,  if  any,  was  necessary. 

In  case  of  injury  to  the  eye,  please  state  clearly  what  the  result  of  the 
injury  was;  as,  for  example,  total  loss  of  sight,  or  serious  or  shght  impair- 
ment of  vision  of  either  or  both  eyes. 

The  questions  on  the  first  two  lines  of  the  report,  including  "number 
of  employees"  (i.e.,  total  number  in  Massachusetts)  and  "nature  of 
business,"  apply  to  the  employer;  the  next  portion,  including  "number 
of  children  under  16,"  to  the  employee. 


321 


MASSACHUSETTS    COMMISSION    ON    COMPENSATION    FOR    INDUS- 
TRIAL ACCIDENTS. 
Room  442,  Tremont  Building. 
Report  of  NONFATAL  Accident. 

Name  and  Location  of  Employer 

Total  Number  of  Employees  in  Massachusetts Nature  of  Business 

(If  number  varies,  give  average.) 
Injured  Employee:  — 

Name Sex Age 

Home  Address 

Average  Wage  per  Week (Must  be  given  by  the  week.    If  payment 

is  by  hourly  or  piece-work  rates,  give  average  weekly  earnings.) 

Occupation  when  Injured 

Name  of  Machine  or  Tool  by  which  Injured 

Injury: — 

Date  and  Hour  of  Accident 

Date  of  Beginning  of  Absence,  if  Later  than  Date  of  Accident 

Nature  of  Injury 

(See  also  supplement.    In  case  of  crushing  of  any  part,  state  definitely  whether  there  was 
amputation.) 

Did  Injury  Cause  any  Absence  from  Work? Probable  Period   of   Disabil- 
ity  

Description  of  Accident 


Report  Made  Out  by 

Date  of  Report Whose  Position  is 

If  the  injured  has  already  returned,  do  not  detach  supplement  below. 


MASSACHUSETTS    COMMISSION    ON    COMPENSATION    FOR    INDUS- 
TRIAL ACCIDENTS. 
Room  442,  Tkemont  Building. 
Supplemental  Report  of  Accident. 

(To  be  detached  and  forwarded  when  injured  person  returns  to  work,  or  60  days  after  accident.) 

Name  of  Employer 

Name  of  Injured  Employee Date  of  Accident 

If  Injured  Has  Returned  to  Work,  When  Did  He  Return? 

Partial  Disability.     If  Injured  is  able  to  do  some  work,    but  is  not  worth  his  full 

wage,  give  (a)  Date  of  beginning  of  lower- value  work Date 

of  return  to  work  of  full  value Value  of 

work  done  during  partial  disability  $ per  week.     (In  some  cases 

employers  pay  full  wages  during  partial  disability.  The  question  here  is  the 
actual  value  of  the  work,  not  the  wages  paid.) 

If  Injured  Has  Not  Returned  to  Work  at  the  Expiration  of  Sixty  Days  After  the 
Accident, 

(a)  If  Still  Disabled,  State  How  Much  Longer  His  Disability  is  Expected  to 
Last 

(b)  If  not  Working,  But  Able  to  Work,  When  Did  Disability  End? 

Results  of  Accident.     Amputation.     State  Definitely  Between  What  Joints 

Injury  to  Eye.     "Vision  in  Injured  Eye,  with  Glasses,  reduced  to  \^5  of  normal 

or  less? 

Date  of  Supplemental  Report 

Report  Made  Out  by .' 

(Printed  in  copying  ink.) 


322 


MASSACHUSETTS    COMMISSION    ON    COMPENSATION    FOR    INDUS- 
TRIAL  ACCIDENTS. 

Room  442,  Tremont  Building. 

Report  of  FATAL  Accident. 

Name  and  Location  of  Employer 

Total  Number  of  Employees  in  Mass 

(If  number  varies,  give  average.) 

Nature  of  Business 

Injured  Employee:  — 

Name Sex Age 

Home  Address 

Average  Wage  per  Week (Must  be  given  by  the  week.    If  payment 

is  by  hourly  or  piece-work  rates,  give  average  weekly  earnings.) 
Single,  Married,  Widowed  or  Divorced.         Number  of  Children  under   18  Years 
(Cross  out  three  words.) 

of  Age 

If  no  Wife,  Husband,  or  Children  Survive, 

(a)  What  Other  Relatives  were  Dependent  Upon  the  Deceased? 
Relationship 

(b)  What  Part  of  Earnings  was  Contributed  to  their  Support  at  the  Time  of  the 

Injury? 

Weekly  Contribution  $ 

Occupation  When  Injured 

Name  of  Machine  or  Tool  by  Which  Injured 

Injury: — 

Date  and  Hour  of  Accident 

Description  of  Accident 


Report  Made  Out  by . 

Date  of  Report Whose  Position  is ...  . 

(Printed  in  copying  ink.) 


305 

2.  Such  employee  shall  not,  at  the  time  of  entering  into  his  contract 
of  hire,  express  or  implied,  with  such  employer,  have  given  to  his  employer 
notice  in  writing  that  he  elects  not  to  be  subject  to  the  provisions  of  this 
act;  or,  in  the  event  that  such  contract  of  hire  was  made  in  advance  of 
such  employer  becoming  subject  to  the  provisions  of  the  act,  such  em- 
ployee shall  have  given  to  his  employer  notice  in  writing  that  he  elects 
to  be  subject  to  such  provisions,  or  without  giving  either  of  such  notices, 
shall  have  remained  in  the  service  of  such  employer  for  thirty  days  after 
the  employer  has  filed  with  said  board  an  election  to  be  subject  to  the 
terms  of  this  act. 

Section  2394 — 9.  Where  liability  for  compensation  under  this  act 
exists,  the  same  shall  be  as  provided  in  the  following  schedule: 

1.  Such  medical  and  surgical  treatment,  medicines,  medical  and  surgi- 
cal supphes,  crutches,  and  apparatus,  as  may  be  reasonably  required  at 
the  time  of  the  injury  and  thereafter  during  the  disability,  but  not  exceed- 
ing ninety  days,  to  cure  and  relieve  from  the  effects  of  the  injury,  the  same 
to  be  provided  by  the  employer;  and  in  case  of  his  neglect  or  refusal  sea- 
sonably to  do  so,  the  employer  to  be  liable  for  the  reasonable  expense 
incurred  by  or  on  behalf  of  the  employee  in  providing  the  same. 

2.  If  the  accident  causes  disabiUty,  an  indemnity  which  shall  be  pay- 
able as  wages  on  the  eighth  day  after  the  injured  employee  leaves  work 
as  the  result  of  the  injury,  and  weekly  thereafter,  which  weekly  indemnity 
shall  be  as  follows: 

(a)  If  the  accident  causes  total  disabihty,  sixty-five  per  cent,  of  the 
average  weekly  earnings  during  the  period  of  such  total  disability;  pro- 
vided that,  if  the  disability  is  such  as  not  only  to  render  the  injured  em- 
ployee entirely  incapable  of  work,  but  also  so  helpless  as  to  require  the 
assistance  of  a  nurse,  the  weekly  indemnity  during  the  period  of  such  assist- 
ance after  the  first  ninety  days  shall  be  increased  to  one  hundred  per 
cent,  of  the  average  weekly  earnings. 

(b)  If  the  accident  causes  partial  disability,  sixty-five  per  cent,  of  the 
weekly  loss  in  wages  during  the  period  of  such  partial  disability. 

(c)  If  the  disability  caused  by  the  accident  is  at  times  total  and  at 
times  partial,  the  weekly  indemnity  during  the  periods  of  each  such  total 
or  partial  disability  shall  be  in  accordance  with  said  subdivisions  (a)  and 
(b),  respectively. 

(d)  Said  subdivisions  (a),  (b),  and  (c)  shall  be  subject  to  the  following 
limitations : 

Aggregate  disability  indemnity  for  injury  to  a  single  employee  caused 
by  a  single  accident  shall  not  exceed  four  times  the  average  annual  earn- 
ings of  such  employee. 

The  aggregate  disability  period  shall  not,  in  any  event,  extend  beyond 
fifteen  years  from  the  date  of  the  accident. 

The  weekly  indemnity  due  on  the  eighth  day  after  the  employee  leaves 
work  as  the  result  of  the  injury  may  be  withheld  until  the  twenty-ninth 
day  after  he  so  leaves  work;   if  recovery  from  the  disability  shall  then 


-       306 

have  occurred,  such  first  weekly  indemnity  shall  not  be  recoverable;  if 
the  disability  still  continues,  it  shall  be  added  to  the  weekly  indemnity 
due  on  said  twenty-ninth  day  and  be  paid  therewith. 

If  the  period  of  disability  does  not  last  more  than  one  week  from  the 
day  the  employee  leaves  work  as  the  result  of  the  injury,  no  indemnity 
whatever  shall  be  recoverable. 

3.  The  death  of  the  injured  employee  shall  not  affect  the  obligation  of 
the  employer  under  subsections  1  and  2  of  this  section,  so  far  as  his  liabil- 
ity shall  have  become  payable  at  the  time  of  death;  but  the  death  shall 
be  deemed  the  termination  of  disability,  and  the  employer  shall  there- 
upon be  liable  for  the  following  death  benefits  in  lieu  of  any  further  dis- 
ability indemnity; 

(a)  In  case  the  deceased  employee  leaves  a  person  or  persons  wholly 
dependent  on  him  for  support,  the  death  benefit  shall  be  a  sum  sufficient, 
when  added  to  the  indemnity  which  shall  at  the  time  of  death  have  been 
paid  or  become  payable  under  the  provisions  of  subsection  2  of  this  sec- 
tion, to  make  the  total  compensation  for  the  injury  and  death  (exclusive 
of  the  benefit  provided  for  in  subsection  1),  equal  to  four  times  his  aver- 
age annual  earnings;  the  same  to  be  payable,  unless  and  until  the  board 
shall  direct  payment  in  gross,  in  weekly  installments  corresponding  in 
amount  to  the  weekly  earnings  of  the  employee. 

(b)  In  case  the  deceased  employee  leaves  no  one  wholly  dependent  on 
him  for  support,  but  one  or  more  persons  partially  dependent  therefor, 
the  death  benefit  shall  be  such  percentage  of  four  times  such  average  an- 
nual earnings  of  the  employee  as  the  average  annual  amount  devoted  by 
the  deceased  to  the  support  of  the  person  or  persons  so  partially  dependent 
on  him  for  support  bears  to  such  average  annual  earnings,  the  same  to 
be  payable,  unless  and  until  the  board  shall  direct  payment  in  gross,  in 
weekly  installments  corresponding  in  amount  to  the  weekly  earnings  of 
the  employee;  provided  that  the  total  compensation  for  the  injury  and 
death  (exclusive  of  the  benefit  provided  for  in  said  subsection  1)  shall  not 
exceed  four  times  such  average  annual  earnings. 

(c)  Liability  for  the  death  benefits  provided  for  in  subdivisions  (a) 
and  (b)  respectively  shall  only  exist  where  the  accident  is  the  proximate 
cause  of  death;  provided  that,  if  the  accident  proximately  causes  perma- 
nent total  disability,  and  death  ensues  from  some  other  cause  before 
disability  indemnity  ceases,  the  death  benefit  shall  be  the  same  as  though 
the  accident  had  caused  death;  and  provided  further  that,  if  the  accident 
proximately  causes  permanent  partial  disability  and  death  ensues  from 
some  other  cause  before  disability  indemnity  ceases,  liability  shall  exist 
for  such  percentage  of  the  death  benefits  provided  for  in  said  subdivision 
(a)  or  (b)  (as  the  case  may  be),  as  shall  fairly  represent  the  proportionate 
extent  of  the  impairment  of  earning  capacity  caused  by  such  permanent 
partial  disability  in  the  employment  in  which  the  employee  was  working 
at  the  time  of  the  accident. 

(d)  If  the  deceased  employee  leaves  no  person  dependent  upon  him  for 


&^. 


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